March 15, 2006, Introduced by Senator PATTERSON and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending section 2912e (MCL 600.2912e), as amended by 1993 PA
78.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2912e. (1) In an action alleging medical malpractice,
within
21 days after the plaintiff has filed served an affidavit
in compliance with section 2912d, the defendant shall file an
answer to the complaint. Subject to subsection (2), the defendant
or, if the defendant is represented by an attorney, the defendant's
attorney shall file, not later than 91 days after the plaintiff or
the plaintiff's attorney files the affidavit required under section
2912d or 112 days after service on the defendant of the complaint,
whichever is later, an affidavit of meritorious defense signed by a
health professional who the defendant's attorney reasonably
believes meets the requirements for an expert witness under section
2169. The affidavit of meritorious defense shall certify that the
health professional has reviewed the complaint and all medical
records supplied to him or her by the defendant's attorney
concerning the allegations contained in the complaint and shall
contain a statement of each of the following:
(a) The factual basis for each defense to the claims made
against the defendant in the complaint.
(b) The standard of practice or care that the health
professional or health facility named as a defendant in the
complaint claims to be applicable to the action and that the health
professional or health facility complied with that standard.
(c) The manner in which it is claimed by the health
professional or health facility named as a defendant in the
complaint that there was compliance with the applicable standard of
practice or care.
(d) The manner in which the health professional or health
facility named as a defendant in the complaint contends that the
alleged injury or alleged damage to the plaintiff is not related to
the care and treatment rendered.
(2) If the plaintiff in an action alleging medical malpractice
fails
to allow access to medical records as required under section
2912b(6)
2912b(5), the affidavit
required under subsection (1) may
be filed within 91 days after filing an answer to the complaint.
(3) Subject to subsection (6) and except for a formal defect
to which subsection (5) applies, a plaintiff who wishes to
challenge an affidavit of meritorious defense filed under this
section because of a formal defect shall, within 91 days after the
affidavit is served on the plaintiff, file with the court and serve
on the defendant a written challenge stating the alleged defect
with sufficient specificity to give the defendant notice of the
defect. A defendant who is served with a challenge under this
subsection or a motion based on a formal defect under subsection
(5) may file and serve an affidavit correcting only the alleged
defect within 63 days after being served with the challenge or
motion. The correcting affidavit shall be given by the same affiant
who gave the original affidavit unless the original affiant has
become unable to give an affidavit because of death or disability.
The correcting affidavit relates back to the date the original
affidavit was filed unless otherwise ordered by the court.
(4) Subject to subsection (6), a plaintiff who wishes to
challenge an affidavit of meritorious defense that has been
challenged under subsection (3) and not corrected or an affidavit
that has been corrected under subsection (3), because of a formal
defect, shall file a motion challenging the affidavit not later
than 21 days after the corrected affidavit is served or, if a
corrected affidavit is not served, 21 days after the time to serve
the corrected affidavit under subsection (3) has passed.
(5) Subject to subsection (6), a plaintiff who wishes to
challenge an affidavit of meritorious defense filed under this
section because of a substantive defect or a formal defect that the
plaintiff for good cause did not discover before the time for
serving a challenge under subsection (3) shall file a motion
challenging the defect not later than 35 days after the ordered
close of discovery in the action or 35 days after the completion of
the deposition of the affiant, whichever is later. The time to
challenge an affidavit of meritorious defense under this subsection
may be extended by the parties in a written stipulation filed with
the court or by order of the court on a showing of good cause. A
formal defect described in this subsection may be corrected under
subsection (3). A substantive defect may not be corrected under
subsection (3).
(6) An affidavit of meritorious defense filed under this
section may be challenged at any time for a defect resulting from
the intentional misconduct of the defendant or the defendant's
attorney. A defect described in this subsection may not be
corrected under subsection (3).
(7) If an affidavit required by this section is taken before a
notary public or justice of the peace in another state, it is not
necessary that the signature and official status of the notary
public or justice of the peace be certified by the clerk of a court
as otherwise required by section 2102(4).
(8) As used in this section:
(a) "Formal defect" means a defect to which 1 or both of the
following apply:
(i) The defect is in the notarization of the affidavit.
(ii) The defect results from an inadvertent clerical error, a
typographical, grammatical, or punctuation error, improper
pagination, or missing pages, including a page with a signature if
the signed page was in existence at the time the affidavit was
required to be filed under subsection (1) or (2).
(b) "Substantive defect" means a defect that is not a formal
defect.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 1149
of the 93rd Legislature is enacted into law.
Enacting section 2. This amendatory act applies only to civil
actions filed on or after the effective date of this amendatory
act.