                            STATE OF MICHIGAN

                            COURT OF APPEALS



RUBEN CASTRO and CHRISTY CASTRO,                                    FOR PUBLICATION
                                                                    August 20, 2015
               Plaintiffs- Appellants,                              9:00 a.m.

v                                                                   No. 316639
                                                                    Washtenaw Circuit Court
JAMES ALAN GOULET, MD and JAMES                                     LC No. 13-000138-NH
ALAN GOULET MD, PC,

               Defendants-Appellees,
and

STEPHEN R. TOLHURST, MD1

               Defendant.


Before: RONAYNE KRAUSE, P.J., and WILDER and STEPHENS, JJ.

RONAYNE KRAUSE, P.J.

        Plaintiffs appeal as of right an order granting defendants’ motion for summary disposition
of their medical malpractice claim under MCR 2.116(C)(7) for the failure to file an affidavit of
merit (AOM) with their complaint within the two-year period of limitations. Instead of an AOM,
plaintiffs filed with their complaint a motion to extend the time for filing an AOM as provided
for by MCL 600.2912d(2). The trial court granted that motion, however subsequently granted
summary disposition on the grounds that the action itself was untimely. We reverse and remand.



       This Court reviews de novo matters of statutory interpretation, as well as the trial court’s
decision to grant or deny a motion for summary disposition. See Titan Ins Co v Hyten, 491 Mich
547, 553; 817 NW2d 562 (2012). Summary disposition pursuant to MCR 2.116(C)(7) is
appropriate if a “claim is barred by an applicable statute of limitations.” Nuculovic v Hill, 287
Mich App 58, 61; 783 NW2d 124 (2010). “In reviewing a motion under subrule (C)(7), a court


1
 The parties stipulated to dismiss Stephen R. Tolhurst, MD from the case with prejudice and
without costs.


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accepts as true the plaintiff’s well-pleaded allegations of fact, construing them in the plaintiff’s
favor.” Id. We otherwise review de novo the trial court’s determinations of law; however, any
factual findings made by the trial court in support of its decision are reviewed for clear error, and
ultimate discretionary decisions are reviewed for an abuse of that discretion. Herald Co, Inc v
Eastern Mich Univ Bd of Regents, 475 Mich 463, 470-472; 719 NW2d 19 (2006). Under the
clear error standard, this Court defers to the trial court unless definitely and firmly convinced that
the trial court made a mistake, and under the abuse of discretion standard, this Court “cannot
disturb the trial court’s decision unless it falls outside the principled range of outcomes.” Id. at
472.

       An AOM generally must be filed with a medical malpractice complaint. MCL
600.2912d(1). Ordinarily, a complaint filed without an AOM is “insufficient to commence the
lawsuit” and does not toll the statute of limitations. Scarsella v Pollak, 461 Mich 547; 607
NW2d 711 (2000). However, the Legislature has provided for certain narrow exceptions to that
general requirement; in relevant part, MCL 600.2912d(2) provides:

              Upon motion of a party for good cause shown, the court in which the
       complaint is filed may grant the plaintiff or, if the plaintiff is represented by an
       attorney, the plaintiff’s attorney an additional 28 days in which to file the affidavit
       required under subsection (1).

Consequently, a medical malpractice plaintiff may, under appropriate circumstances, be
permitted to file their AOM up to 28 days after filing the complaint.2 Our Supreme Court has
expressly recognized that a plaintiff may be unable to obtain an AOM within the requisite time
period, in which case “the plaintiff's attorney should seek the relief available in MCL
600.2912d(2).” Solowy v Oakwood Hosp Corp, 454 Mich 214, 228-229; 561 NW2d 843 (1997)
(emphasis added). If the trial court finds “a showing of good cause, an additional twenty-eight
days [are permitted] to obtain the required affidavit of merit.” Id. at 229. “During this period,
the statute will be tolled and summary disposition motions on the ground of failure to state a
claim should not be granted.” Id.

       This Court has clarified that it is ultimately the granting of the motion that effectuates the
28-day tolling, not merely filing the motion. Barlett v North Ottawa Community Hosp, 244 Mich


2
  Other exceptions may apply under circumstances not relevant to the instant matter. We do not
discuss any such additional exceptions here. We also note that we are aware that our Supreme
Court has recently reiterated that “a medical malpractice action can only be commenced by filing
a timely NOI and then filing a complaint and an affidavit of merit after the applicable notice
period has expired, but before the period of limitations has expired.” Tyra v Organ Procurement
Agency of Michigan, ___ Mich ___, ___; ___ NW2d ___ (2015), slip op at p 21. This general
rule governing the commencement of medical malpractice actions is inapplicable here. The
exception at issue here was neither before the Court in Tyra nor even mentioned by the Court,
and the Court emphasized in no uncertain terms that matters not directed to its attention by
counsel would not be considered. Id. at ___ (slip op at pp 15-17). Tyra adds nothing to the
question at issue in the case at bar.


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App 685, 692; 625 NW2d 470 (2001). Furthermore, the tolling period only runs from the date
the complaint is filed; it cannot resurrect a claim where the complaint itself was untimely.
Ligons v Crittenton Hosp, 490 Mich 61, 74-75, 84-85; 803 NW2d 271 (2011). However,
plaintiffs filed their complaint here within the two-year limitations period, their motion was
granted,3 and they filed their AOM fewer than 28 days after the date of the filing of their
complaint.4 Consequently, plaintiffs acted properly pursuant to both statute and case law.5

        Defendants and the dissent believe it is relevant that the trial court granted plaintiffs’
motion on March 8, 2013, which is of course well after the expiration of the 28-day period. The
only relevance is the fact that, as noted, the trial court actually granted the motion. MCL
600.2912d(2) explicitly affords “an additional 28 days in which to file the affidavit required
under subsection (1),” which in turn specifies that the affidavit should be filed with the
complaint. Our Supreme Court’s discussion of the statute likewise articulates the need for an
AOM at the commencement of an action, unless an additional 28 days are provided by the
granting of a motion under MCL 600.2912d(2). Ligons, 490 Mich at 84-85; Solowy, 454 Mich at
229 (emphasis added). That period is “an extension.” Scarsella, 461 Mich at 552. By statute
and by precedent, the 28-day period must run from the date the complaint is filed, irrespective of
when the motion is granted. Not only would a contrary holding violate the plain reading of the
statute, it would also make a plaintiff’s rights turn not on plaintiff’s compliance with the


3
  Defendants raise an alternative argument that no “good cause” was shown. As we will discuss
infra, we disagree.
4
  The alleged malpractice occurred on February 9, 2011, so the limitations period was set to
expire on February 9, 2013. See MCL 600.5805(6). Plaintiffs filed their complaint and their
motion to extend the time for filing an AOM on February 4, 2013, and their AOM on February
26, 2013. The dissent relies on our Supreme Court’s analysis in Gladych v New Family Homes,
Inc, 468 Mich 594, 603-604; 664 NW2d 705 (2003), for the proposition that the notice period
expired and therefore rebooted, necessitating a new summons and complaint. This ignores the
fact that by statute, MCL 600.2912d(2) provides for an extension of the period within which to
file and for what is effectively the “perfection” of a complaint initially filed without an AOM
with a later filing of the AOM. Furthermore, the continuing vitality of Gladych is doubtful,
given that the Legislature amended MCL 600.5856 after that case was decided to clarify that the
statute of limitations is tolled “[a]t the time the complaint is filed, if a copy of the summons and
complaint are served on the defendant within the time set forth in the supreme court rules.” The
tolling criteria were satisfied here.
5
  We are puzzled by the dissent’s citation to Holmes v Mich Capital Med Ctr, 242 Mich App
703, 709; 620 NW2d 319 (2003). In that case, this Court explicitly stated that the limitation
period at issue was not tolled and thus the claim was not timely brought “[b]ecause plaintiffs
failed to comply with MCL 600.2912d; MSA 27A.2912(4) by filing an affidavit of merit with
their complaint or by requesting an extension of time in which to file their complaint.” Id.
(emphasis added). Holmes supports rather than refutes our position. Moreover, Holmes does not
address the impact of a trial court’s delayed grant of a requested extension. We fail to perceive
the relevance of Holmes.


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procedures established by the Legislature, but rather purely on the vagaries of when the trial
court, or more likely not even the court but rather a docketing clerk, chooses to hear or docket
the motion. In effect, the dissent and defendants would render MCL 600.2912d(2) nugatory.6

        The obvious significance of the timing requirements in MCL 600.2912d(2) is that a
plaintiff who makes a motion to extend time must proceed on the assumption that the motion will
be granted. Conversely, the trial court need not go to particular lengths to rush the matter, which
could risk a less-than-optimal decision for either party. Because plaintiffs complied with the
requirements of the statute, and they filed their complaint and motion within the two-year
limitations period and their AOM within 28 days thereafter, the only remaining issue is
defendant’s alternate argument that plaintiffs failed to show good cause.

        “Good cause” is not defined in the statute. The term has, in such undefined
circumstances, been found “so general and elastic in its import that we cannot presume any
legislative intent beyond opening the door for the court to exercise its best judgment and
discretion in determining if conditions exist which excuse the delay when special circumstances
are proven to that end.” Lapham v Oakland Circuit Judge, 170 Mich 564, 570; 136 NW 594
(1912). The trial court’s finding of good cause, or for that matter of a lack of good cause, is
consequently a highly discretionary one. Id. at 570-571. As discussed, we will disturb a trial
court’s exercise of discretion only if the result falls outside the range of principled outcomes.
Herald Co, Inc, 475 Mich at 472.

        According to the complaint, defendant doctors performed a left hip arthroscopy surgical
procedure on plaintiff Ruben Castro. Before the surgery, he did not have erectile dysfunction,
but afterward, he suffered from decreased sensation in his penis, pain when urinating, and
erectile dysfunction causing the inability to procreate. Plaintiffs alleged that Ruben’s injuries
were caused by defendants’ negligent “use of the perineal traction post using excessive pressure,
and employing the same for a period in excessive [sic] of two [2] hours both being contrary to
the standard of practice.” Plaintiffs also alleged that defendants failed to inform Ruben that
erectile dysfunction was a possible consequence of the procedure. Plaintiffs contend that he
would not have undergone surgery if he had known of that possible side effect. In addition to
negligence, plaintiffs alleged a loss of consortium.

       Significantly to the issue on appeal, defendants contended that plaintiffs had
unreasonably procrastinated in bringing the instant action. Plaintiffs argued that the reason for
the delay was that doctors had told Ruben “that erectile dysfunction which may occur from
surgery in which a perineal traction post is utilized goes away, after weeks or months” but that
no such promised recovery occurred for Ruben. Plaintiffs stated they would have filed the
lawsuit earlier if medical professionals had not advised Ruben that erectile dysfunction would
subside and then completely phase out weeks or months after surgery. In other words, plaintiffs


6
  The dissent inexplicably concludes that plaintiffs are not at the mercy of the potentially
capricious or arbitrary whims of a docketing clerk or a potentially full docket, because plaintiffs
can—and plaintiff here did not—express a plea for expeditiousness. We are unable to locate any
Court Rule or statute requiring such a plea.


                                                -4-
delayed because of defendants’ assurances that the complications Ruben suffered would end on
their own. The purpose of the AOM requirement in MCL 600.2912d is to deter the filing of
frivolous medical malpractice claims. VandenBerg v VandenBerg, 231 Mich App 497, 502-503;
586 NW2d 570 (1998). Plaintiffs attempted, on the basis of defendants’ assurances, to achieve
precisely the same effect and avoid filing a needless suit. Under the circumstances, we simply
cannot find that the trial court’s decision to allow plaintiffs the 28-day extension was outside the
range of principled outcomes. The trial court had ample grounds to find good cause and we find
there is no abuse of discretion in granting the allowed statutory extension.

        The trial court properly granted plaintiffs’ motion to extend the time in which to file their
AOM, and plaintiffs properly complied with all of the timing requirements set forth in MCL
600.2912d. Consequently, plaintiffs’ action was timely commenced, and the trial court should
not have granted summary disposition pursuant to MCR 2.116(C)(7) on the basis of it being
untimely. We therefore reverse and remand for further proceedings. We do not retain
jurisdiction.



                                                              /s/ Amy Ronayne Krause
                                                              /s/ Cynthia Diane Stephens




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