The Michigan Supreme Court and malpractice

          Perhaps a growing reputation as an ornamental shill for the insurance industry is causing second-thoughts on Michigan's Supreme Court.  This week, after declining on nine separate occasions to "correct" the lower courts' "mis-application" of the "reforming" majority's Scarsella decision, the Supreme Court finally corrected an injustice it had allowed to linger for nearly seven years.  The Scarsella decision was widely believed to require that a reviewing Court dismiss any medical malpractice claim if the Affidavit of Merit filed to support it was defective--even if the defect was marginal and even if the Defendant waited until after the statute of limitations had run to raise the issue of the claimed defect.  This harsh approach to Plaintiff's pleadings has been a constant for the "reforming" majority of the Court.

          This month, the Supreme Court overturned a lower court decision that had allowed a sand-bagging Defendant to wait until the statute of limitations had run, and then permanently dismiss a claim that was based on an affidavit containing a defect-- without affording the Plaintiff any right to amend.  The Court belatedly held that the time remaining to the Plaintiff when the affidavit was filed would remain available to the Plaintiff after a Court ruled its original affidavit was inadequate.  In this way, clerical and other minor errors can be repaired if they are addressed promptly.  There will be no advantage to any party associated with playing games with deadlines or alleged errors.  Unfortunately, this belated response to the lower courts' misapprehension of Scarsella and the other Supreme Court decisions which had implied such a harsh result, comes too late for a significant number of Plaintiffs whose appeals were previously denied by the Court, or who gave up without filing for Leave.

          There is widespread speculation with regard to whether the conservative majority will apply this decision with equal force to minor flaws identified in the Notice of Intent which the Plaintiff is required to file prior to initiating a Complaint or conducting discovery.  In equally surprising news, the Supreme Court concluded that the provision which grants mentally incompetent people temporary relief from the statute of limitations applies to malpractice claims:  while it was assumed for several decades that this provision of the Revised Judicature Act applied to all personal injury claims, the conservative majority of the Court recently held that it does not apply to grant a reprieve to children or incompetent adults with no fault claims.  There was widespread suspicion that if any half-reasonable argument could be identified to justify it, the majority would extend their nullification to malpractice claims as well.  Oddly, they didn't.  Two Democratic Justices and one Republican cited the "plain language" of the statute in a concurring opinion that refused to engage in the nugatory nonsense which has become a trademark of the current Supreme Court majority.