The Michigan Supreme Court recently came out with a new decision involving medical malpractice actions – Ottgen v Katranji, ___ Mich ___ (2023).

The Supreme Court in Ottgen overruled Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000), which for the past almost twenty-three (23) years had held that a medical malpractice complaint that is not accompanied by a timely filed affidavit of merit (AOM), as required by MCL 600.2912d, will not toll the statute of limitations.

The Court in Ottgen held that the filing of the complaint alone, without the accompanying AOM, is sufficient to toll the medical malpractice limitations period, under the plain terms of the tolling statute, MCL 600.5856.

The Ottgen Court, however, held that a plaintiff in a medical malpractice action still must file an AOM with the complaint, and that a failure to do so, of itself, remains grounds for dismissal. Although grounds for dismissal, the Court ruled that dismissals based on the failure to file an AOM with the complaint cannot be “with prejudice,” for violation of the statute of limitations based on lack of tolling, because a complaint without an AOM will now still toll the limitations period.

The Court did provide leeway by noting that in some cases, dismissal could be granted with prejudice. The Court did not decide, or create a rule to define, exactly when dismissal would be “with prejudice” rather than “without prejudice.” The Court suggested that “an intentional violation of § 2912d to create additional time for filing an AOM or otherwise improperly delay the proceedings” might result in a dismissal “with prejudice,” whereas “an inadvertent or quickly rectified failure to attach an AOM might merit a lesser sanction.”

For questions or further information please reach out to Katherine Gostek or Christina Ginter.

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New Medical Malpractice Rule Complaint Without Affidavit of Merit Tolls Statute of Limitations

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