                          STATE OF MICHIGAN

                            COURT OF APPEALS



JAMES WADE,                                                          UNPUBLISHED
                                                                     January 29, 2015
               Plaintiff-Appellant,

v                                                                    No. 317531
                                                                     Iosco Circuit Court
WILLIAM MCCADIE, D.O. and ST. JOSEPH                                 LC No. 13-007515-NH
HEALTH SYSTEM, INC. d/b/a HALE ST.
JOSEPH MEDICAL CLINIC,

               Defendants-Appellees.


Before: K. F. KELLY, P.J., and SAWYER and METER, JJ.

METER, J. (dissenting).

       I respectfully dissent and would affirm.

       Plaintiff alleged that following medical examinations in February 2012, he was advised
by his treating doctors that he was suffering from renal failure as a result of poorly controlled
hypertension. According to plaintiff, defendant William McCadie, D.O., his regular doctor,
breached his duty of care over a prolonged period by failing to properly manage and treat his
hypertension, leading to plaintiff’s renal failure. Plaintiff admits that his claim accrued on April
21 or 25, 2011, the date when McCadie should have first been aware of plaintiff’s renal
dysfunction.

        Plaintiff asserts that he first requested medical records from defendants on April 2, 2012,
and defendants assert that they mailed him all the medical records in their possession and control
in April 2011. Plaintiff does not dispute that he received medical records pertaining to 1979 to
2012, but contends that the records received did not include his billing records and laboratory-
test results from before March 13, 1992.

       On August 21, 2012, plaintiff’s counsel mailed his notice of intent to file suit and
requested access to all plaintiff’s medical records within defendants’ control, including billing
and payment records, within 56 days as provided by MCL 600.2912b(5). Referencing many of




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the medical records that had been provided to date,1 plaintiff’s counsel described in detail
McCadie’s failure to control plaintiff’s blood pressure and creatinine levels, asserting that
plaintiff’s acute and prolonged hypertension began in 2008 and that McCadie failed at that time
to refer plaintiff to a specialist. Further, plaintiff’s counsel noted that McCadie ignored
“ominous” laboratory results in 2011, when it was clear that plaintiff was suffering from
significant renal dysfunction. It is undisputed that no additional records were provided to
plaintiff within 56 days after defendants received plaintiff’s notice of intent to sue.

       Plaintiff filed his complaint on February 22, 2013, and six days later submitted a request
for production of documents, including all medical and billing records in defendants’ control.
On May 15, 2013, defendants’ counsel sent a letter to plaintiff’s counsel, stating that plaintiff’s
laboratory results from before 1992 had been destroyed in accordance with the Michigan Public
Health Code, MCL 333.1101 et seq., which only required that such records be retained for seven
years.

        On May 7, 2013, defendants filed a motion for summary disposition under MCR
2.116(C)(7), arguing that plaintiff failed to provide an affidavit of merit with his complaint as
required by MCL 600.2912d. On May 24,2 2013, plaintiff filed an affidavit of merit signed by
Richard Stern, M.D., who opined—based on a review of plaintiff’s medical records—that
McCadie’s negligent acts and omissions were the direct and proximate cause of plaintiff’s acute
renal failure in February 2012. Plaintiff argued that he was permitted to file the affidavit of merit
within 91 days of the complaint under MCL 600.2912d(3) because defendants failed to provide
him with his complete medical records as they were required to do under MCL 600.2912b(5).
Defendants replied that they had already mailed plaintiff’s counsel all plaintiff’s medical records
within their control, which is all that was required of them under MCL 600.2912b(5).
Defendants also argued that medical records between 1979 and 1992 were not related to
plaintiff’s malpractice claim and that plaintiff timely received enough records to file an affidavit
of merit. Following a hearing, the trial court granted defendants’ motion on the basis that
plaintiff failed to show that defendant did not comply with MCL 600.2912b(5), especially
considering that defendants were permitted to destroy certain of his records by law.

        Plaintiff now argues that the court erred in granting the motion for summary disposition.
This Court reviews de novo 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). “When
reviewing a motion for summary disposition under MCR 2.116(C)(7), the trial court must accept
the nonmoving party’s well-pleaded allegations as true and construe the allegations in the
nonmovant’s favor to determine whether any factual development could provide a basis for
recovery.” Hoffman v Boonsiri, 290 Mich App 34, 39; 801 NW2d 385 (2010). In the absence of


1
  They included the following: blood-pressure readings from 1991 through 2011; plaintiff’s
creatinine levels between 1992 and 2000, and 2008 to 2009; prescriptions for medication from
1992 and 1993; and McCadie’s notes through 2012.
2
 The record suggests that this document was filed on May 28, but defendants do not dispute the
May 24 date for purposes of appeal.


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disputed facts, whether a plaintiff’s claim is barred by a statute of limitations is a question of law
for a court to decide. See Solowy v Oakwood Hosp Corp, 454 Mich 214, 230; 561 NW2d 843
(1997).

       Under MCL 600.5805(6), a plaintiff bringing an “action charging malpractice” must
commence the action within two years after the claim first accrued. Plaintiff admitted below
(and does not now contest) that his claim accrued on April 21 or 25, 2011, such that the two-year
period of limitations was set to expire on April 21 or 25, 2013.

        Additionally, MCL 600.2912d(1) provides that a plaintiff bringing a malpractice action
must file with the complaint an “affidavit of merit,” in which a health professional certifies,
based on a review of the medical records supplied, that the defendant breached the duty of care
to the plaintiff and caused the plaintiff to suffer an injury. “[W]hen a plaintiff wholly omits to
file the affidavit required by MCL 600.2912d(1), the filing of the complaint is ineffective, and
does not work a tolling of the applicable period of limitation.” Ligons v Crittenton Hosp, 490
Mich 61, 73; 803 NW2d 271 (2011) (citations and internal quotation marks omitted). “When the
untolled period of limitations expires before the plaintiff files a complaint accompanied by an
[affidavit of merit], the case must be dismissed with prejudice on statute-of-limitations grounds.”
Id.

         There are two exceptions to the requirement in MCL 600.2912d(1) that the affidavit of
merit be filed with the complaint. Under MCL 600.2912d(2), a court may, upon motion and for
good cause shown, permit a plaintiff to file an affidavit of merit within 28 days after the filing of
the complaint. Under MCL 600.2912d(3), an affidavit of merit may be filed within 91 days after
the filing of the complaint “[i]f the defendant . . . fails to allow access to medical records within
the time period set forth in” MCL 600.2912b(5).3 MCL 600.2912b(5) gives a defendant 56 days
from their receipt of the plaintiff’s notice of intent to sue in which to give the plaintiff access to
“all medical records related to the claim that are in the control of the health professional or health
facility.”

        Here, it is undisputed that plaintiff did not file an affidavit of merit with his complaint
and that he did not file a motion seeking an additional 28 days under MCL 600.2912d(2). What
plaintiff argues is that his claim is not time-barred under MCL 600.5805(6) because defendants
failed to provide him access to all his medical records within 56 days of receiving his notice of
intent to sue, such that his May 24, 2013, affidavit of merit was timely filed within 91 days of his
February 22, 2013, complaint under MCL 600.2912d(3).

       As the Michigan Supreme Court stated in Koontz v Ameritech Servs, Inc, 466 Mich 304,
312; 645 NW2d 34 (2002):

               When interpreting statutory language, our obligation is to ascertain the
       legislative intent that may reasonably be inferred from the words expressed in the


3
  The parties do not dispute that MCL 600.2912d(3) mistakenly refers to MCL 600.2912b(6)
instead of § 2912b(5).


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       statute. When the Legislature has unambiguously conveyed its intent in a statute,
       the statute speaks for itself, and judicial construction is not permitted. Because
       the proper role of the judiciary is to interpret and not write the law, courts simply
       lack authority to venture beyond the unambiguous text of a statute. [Citations
       omitted.]

Further, “the provisions of a statute should be read reasonably and in context.” McCahan v
Brennan, 492 Mich 730, 739; 822 NW2d 747 (2012).

        In my opinion, plaintiff misreads the plain language of MCL 600.2912d(3). Notably, the
statute does not permit a 91-day extension for filing an affidavit of merit where a defendant fails
to give the plaintiff access to all medical records. Rather, MCL 600.2912d(3) speaks only of the
failure to “allow access to medical records,” and it only references MCL 600.2912b(5) to the
extent of invoking “the time period set forth” therein. Thus, even assuming, for purposes of
argument, that defendant violated MCL 600.2912(5) by failing to provide all medical records
related to the claim, the plain language of MCL 600.2912d(3) does not support the conclusion
that such a violation must automatically result in a 91-day extension for filing an affidavit of
merit. Moreover, such an interpretation would be unreasonable when read in context with the
remainder of MCL 600.2912d. MCL 600.2912d(1) establishes the duty to file an affidavit of
merit with the complaint and lists the required contents of the affidavit. Accordingly, it stands to
reason that the Legislature intended MCL 600.2912d(3) to provide an exception to the
requirement that the affidavit be filed with the complaint in cases where the plaintiff has not been
given access to the documents necessary to prepare an effective affidavit. In other words, it is
unreasonable to apply the 91-day extension under MCL 600.2912d(3) where the defendant has
timely given the plaintiff access to medical records sufficient to execute a proper affidavit of
merit, even though other records may be outstanding.

        Here, plaintiff was able to submit an affidavit of merit using the medical records
defendants provided him before he delivered his notice of intent to sue, which began the 56-day
period under MCL 600.2912b(5). Accordingly, in my opinion, plaintiff was not entitled to a 91-
day extension under MCL 600.2912d(3), and the trial court properly dismissed his claim as time-
barred.

       I would affirm.

                                                             /s/ Patrick M. Meter




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