Michigan Supreme Court To Reconsider Scarsella v Pollak

• Published date: 04 January 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Rhoades McKee PC
• Author: Mr J.R. Poll

Continuing a recent trend of granting leave in medical malpractice cases, the Michigan Supreme Court recently granted the plaintiff's application for leave in Ottgen v Katranji to address whether its 2000 opinion in Scarsella v Pollak, 461 Mich 547 (2000) was "correctly decided." In Scarsella, the Michigan Supreme Court held that a timely complaint filed without the affidavit of merit required by MCL 600.2912d does not toll the statute of limitations. Chief Justice McCormack and Justice Viviano recently expressed support for overruling Scarsella in another opinion. See Progress Michigan v Attorney General, 506 Mich 74 (2020) (McCormack, concurring). The grant of leave in Ottgen suggests there may now be a majority in favor of overruling Scarsella.

In Ottgen, Cindi Ottgen underwent thumb surgery with Dr. Katranji on both May 1, 2017 and July 23, 2017. She filed a complaint alleging medical malpractice on April 11, 2019, but failed to file an affidavit of merit with the complaint. On May 9, 2019, the defendants, relying on Scarsella, moved for summary disposition contending that the complaint failed to commence an action or toll the statute of limitations due to the complete failure to file an affidavit of merit. Four days later, on May 13, 2019, Ottgen filed an amended complaint with an affidavit of merit that had been executed on January 30, 2019. Two days later, Ottgen filed an emergency motion seeking leave to file a late affidavit of merit contending that the affidavit wasn't filed with the complaint due to a clerical error. The trial court eventually denied the defendants' motion concluding that Scarsella was distinguishable because there was an affidavit of merit "in existence" at the time the complaint was filed.

The Court of Appeals granted the defendants' application for leave to appeal. The Ottgen panel found that the trial court erred by concluding that an exception to the holding of Scarsella could be found if the plaintiff is "in possession" of an executed...