Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

                                                                               Bridget M. McCormack,
                                                                                              Chief Justice
  May 10, 2019
                                                                                     David F. Viviano,
                                                                                     Chief Justice Pro Tem

                                                                                   Stephen J. Markman
  156950 & (39)                                                                         Brian K. Zahra
                                                                                  Richard H. Bernstein
                                                                                  Elizabeth T. Clement
                                                                                  Megan K. Cavanagh,
                                                                                                   Justices
  JAMES WADE,
           Plaintiff-Appellant,
  v                                                     SC: 156950
                                                        COA: 335418
                                                        Iosco CC: 13-007515-NH
  WILLIAM McCADIE, D.O., and ST. JOSEPH
  HEALTH SYSTEM, INC. d/b/a HALE ST.
  JOSEPH MEDICAL CLINIC,
           Defendant-Appellees.

  _________________________________________/


         On order of the Court, the motion to extend time is GRANTED. The application
  for leave to appeal the November 14, 2017 judgment of the Court of Appeals is
  considered, and it is DENIED, because we are not persuaded that the questions presented
  should be reviewed by this Court.

        VIVIANO, J. (concurring).

          I concur with the denial order because I believe the Court of Appeals reached the
  right result by upholding the trial court’s grant of summary disposition in favor of
  defendants under Scarsella v Pollak, 461 Mich 547, 549 (2000) (holding that an affidavit
  of merit (AOM) is necessary to toll the statute of limitations in a medical malpractice
  case). I write separately because I continue to question whether Scarsella was correctly
  decided. See Castro v Goulet, 501 Mich 884, 889 (2017) (VIVIANO, J., concurring)
  (stating my belief that under a plain reading of the statutory scheme, “the AOM has no
  effect on commencing a lawsuit for purposes of the statute of limitations”). Under my
  reading of the pertinent statutes, although dismissal may still be warranted under a
  different rule, it would not be warranted under MCR 2.116(C)(7) for failure to comply
                                                                                                               2

with the statute of limitations. 1 But since no party has asked us to reconsider Scarsella, 2
I concur with the Court’s denial order in this case.




1
  Whether dismissal would still be warranted for failing to file an affidavit of merit if
Scarsella were overturned and, if so, on what grounds, are interesting questions that
would need to be addressed in an appropriate future case.
2
  In arguing that the Court of Appeals should have applied equitable tolling, plaintiff
points to Ward v Rooney-Gandy, 265 Mich App 515, rev’d 474 Mich 917 (2005), and
Young v Sellers, 254 Mich App 447 (2002). These cases only call into question how
Scarsella should be applied. Thus, plaintiff raises no argument as to whether Scarsella’s
interpretation of the pertinent statutes is correct.



                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         May 10, 2019
       d0507
                                                                             Clerk
