Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr., Chief Justice

Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack

David F. Viviano 

Richard H. Bernstein

Joan L. Larsen, Justices

Order 

May 6, 2016

152725 & (67)

SHERRI WILSON, Personal Representative of 

the Estate of LUELLA EHRLINGER,

Plaintiff-Appellee,

v SC: 152725

COA: 320417

Saginaw CC: 13-019719-NH

PHILLIP A. DEAN, M.D. and MID-MICHIGAN

SURGICAL SPECIALISTS, P.C.,

Defendants-Appellants, 

and

COVENANT MEDICAL CENTER, INC., 

d/b/a COVENANT HEALTHCARE,

Defendant.

_________________________________________/

On order of the Court, the motion for immediate consideration is GRANTED. 

The application for leave to appeal the October 15, 2015 judgment of the Court of 

Appeals is considered, and it is DENIED, because we are not persuaded that the 

questions presented should be reviewed by this Court. 

MARKMAN, J. (dissenting). 

At issue in this medical malpractice case is the sufficiency of plaintiff’s affidavit 

of merit (AOM). Luella Ehrlinger underwent colorectal surgery in July 2009. Defendant 

Phillip A. Dean, who is board-certified in both colorectal and general surgery, performed 

the surgery as well as a second one later in the same month. Thereafter, Ehrlinger’s 

health deteriorated and on August 4, 2009, she went into cardiopulmonary arrest, dying 

approximately one month later.

Sherri Wilson, as the personal representative of Ehrlinger’s estate, filed the instant 

wrongful-death action against Dean and others, alleging that Dean had committed 

malpractice during the two surgeries and in the postoperative period. Along with the 

complaint, plaintiff filed the required AOM, which was signed by an affiant who was 

board-certified only in general surgery. Defendants moved for summary disposition, 

arguing that the AOM did not comply with MCL 600.2912d because the affiant was not 

also board-certified in colorectal surgery. In response, plaintiff moved to amend the 

AOM by having it signed by a new doctor who was board-certified in both specialties, 

and additionally moved to amend the complaint by striking all paragraphs relating to 

malpractice during the two surgeries. 
2

The trial court denied defendants’ motion and granted plaintiff leave to amend the 

complaint, after which the Court of Appeals denied leave to appeal. This Court, 

however, remanded for consideration as on leave granted. Wilson v Dean, 497 Mich 950 

(2015). On remand, the Court of Appeals held that given the limited nature of plaintiff’s 

remaining claims, pertaining only to the postoperative period, plaintiff’s AOM was 

sufficient because the most relevant medical specialty at issue during that period was 

general, and not colorectal, surgery. In re Ehrlinger Estate, unpublished opinion per 

curiam of the Court of Appeals, issued October 15, 2015 (Docket No. 320417), p 5.

The first issue is whether plaintiff’s AOM was sufficient under MCL 600.2912d 

and MCL 600.2169, even though the initial affiant was board-certified only in general 

surgery. MCL 600.2912d(1) requires plaintiff’s attorney to file an AOM “signed by a 

health professional who the plaintiff’s attorney reasonably believes meets the 

requirements for an expert witness under [MCL 600.2169].” MCL 600.2169(1)(a) states 

that “if the party against whom or on whose behalf the testimony is offered is a specialist 

who is board certified, the expert witness must be a specialist who is board certified in 

that specialty.” In Woodard v Custer, 476 Mich 545, 560 (2006), we observed that MCL 

600.2169 “only requires the plaintiff’s expert to match . . . the one most relevant standard 

of practice or care . . . , and, if the defendant physician is board certified in that specialty, 

the plaintiff’s expert must also be board certified in that specialty.” To determine 

whether a plaintiff’s attorney had a reasonable belief under MCL 600.2912d(1) that the 

expert who signed the AOM meets the requirements of MCL 600.2169, courts must 

consider the information available at the time the AOM was prepared. Grossman v 

Brown, 470 Mich 593, 599-600 (2004). 

The Court of Appeals failed to address Grossman, which could well have altered 

the result. Defendants present a reasonable argument that the relevant specialty at the 

time the AOM was prepared was colorectal, not general, surgery-- the injuries alleged all

seemed to flow from the colorectal surgeries, the complaint alleged malpractice for 

actions taken during these surgeries, and plaintiff’s attorney knew or should have known 

of Dean’s board certifications. If defendants prevail in this regard, plaintiff’s AOM 

would be insufficient for failing to comply with MCL 600.2912d(1) because it would 

have been unreasonable to believe that general surgery was “the one most relevant 

standard of practice or care . . . .” Woodard, 476 Mich at 560. 
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 May 6, 2016

d0503p

3

Clerk

The second issue is whether plaintiff may remedy the deficiencies of the AOM by 

amending it or the complaint. Defendants again present a reasonable argument against 

permitting plaintiff to retroactively satisfy AOM requirements by any such amendments. 

Regarding the amendment of the AOM-- allowing a new affiant to sign the old affidavit--

defendants contend that this constitutes not an amendment of the AOM, but the 

introduction of an entirely new AOM. That is, a demarcation exists between valid and 

invalid amendments, and amendments that fundamentally alter the nature of the original 

AOM, as might the substitution of an altogether new affiant, conceivably would fall on 

the invalid side of this demarcation. Further, plaintiff’s amendment of the complaint to 

limit the malpractice allegations to the postoperative period might also be seen as an 

attempt to circumvent the AOM requirements. If a party may always amend the 

complaint itself to cure a deficient AOM, then the AOM requirements would have 

increasingly little substantive force. A party could include a deficient AOM with the 

complaint but nonetheless proceed with the case as long as the complaint was later 

amended to fit the AOM. 

I would remand this case to the Court of Appeals to consider both of these issues. 

Each raises the common concern that a defendant will be presented with one manner of 

case when the AOM is filed, but later be required to defend a different manner of case 

after the complaint or the AOM has been amended. Here, for instance, it may be that 

defendants were initially presented with, and prepared for, a case focusing on the 

intricacies of colorectal surgery, but as a result of amendment have had the case 

transformed into one focused on general medical practices during the postoperative 

period. Yet, the AOM is intended to “certify merit at the outset of the case . . . .” Ligons 

v Crittenton Hosp, 490 Mich 61, 84 (2011) (emphasis added). When, contrary to 

Grossman, the AOM’s merits are not judged at the time it was prepared, but only after 

amendments have retroactively cured its deficiencies, merit has not been certified at the 

outset and a defendant may face a case that was not certified as meritorious when the 

complaint and AOM were filed. In light of these concerns, I respectfully dissent and 

would remand for further consideration by the Court of Appeals.