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### STATE OF MICHIGAN

COURT OF APPEALS

RYAN LOHMANN,

Plaintiff-Appellee, UNPUBLISHED February 17, 2015

v No. 318530
Macomb Circuit Court FAMILY DOCTOR, LC No. 2012-004782-NH

Defendant-Appellant.

Before: F ORT H OOD , P.J., and J ANSEN and G ADOLA , JJ.

P ER C URIAM

.

Defendant, Family Doctor, appeals as of leave granted 1 an order denying defendant’s motion to strike plaintiff’s first affidavit of merit and an or der granting plaintiff’s motion to file an amended witness list, add a new expert witness, and file a n ew affidavit of merit. On appeal, defendant argues that the trial c ourt erred in refusing to stri ke plaintiff’s affidavit of merit and in allowing plaintiff to file a new affidavit of merit. We revers e and remand for proceedings consistent with this opinion.

This case arises from plaintiff’s medical malpractice complain t against defendant, a medical facility in Clinton Township, Michigan. Plaintiff clai ms that defendant’s agent committed malpractice while drawing plaintiff’s blood, resultin g in injuries to plaintiff. The issues on appeal relate to plaintiff’s affidavit of merit, file d with plaintiff’s complaint. During the lower court proceedings, it was revealed that plaintiff’s e xpert witness, Ronhald Gregalit, was unqualified and that the affidavit of merit was premised on false statements. The trial court
denied defendant’s motion to strik e plaintiff’s affidavit of me rit based on the false statements and allowed plaintiff to file a new a ffidavit of merit, which promp ted defendant’s current appeal.

Defendant first argues that the trial court erred in denying d efendant’s motion to strike plaintiff’s affidavit of merit. We agree.

1 Lohmann v Family Doctor , unpublished order of the Court of Appeals, entered April 28, 2014 (Docket No. 318530).-2- This Court reviews a trial court’s decision on a motion to str ike an affidavit of merit for
an abuse of discretion. Kalaj v Khan , 295 Mich App 420, 425; 820 NW2d 223 (2012). “An
abuse of discretion occurs when the trial court’s decision is o utside the range of reasonable and principled outcomes.” Id . Whether a plaintiff’s affidavit of merit complied with the requirements of MCL 600.2912d is reviewed de novo as a question of law. Lucas v Awaad , 299 Mich App 345, 377; 830 NW2d 141 (2013) . Questions of statutory interpretation are also
reviewed de novo. Ligons v Crittenton Hosp , 490 Mich 61, 70; 803 NW2d 271 (2011).

Affidavits of merit are statutorily required in medical malpra ctice actions, pursuant to MCL 600.2912d(1), which requires the following:

[T]he plaintiff in an action alle ging medical malpractice or, i f the plaintiff is represented by an attorney, the plaintiff’s attorney shall file with the complaint an affidavit of merit signed by a health professional who the plai ntiff’s attorney reasonably believes meets the requirements for an expert witnes s under section

2169.

MCL 600.2169 provides the criteria for a qualified expert witne ss. MCL 600.2169 provides in relevant part:

(a) If the party against whom or on whose behalf the testimony is o ffered is a specialist, specializes at the time of the occurrence that is t he basis for the action in the same specialty as the part y against whom or on whose beh alf the testimony is offered. However, if the part y against whom or on whose beha lf the testimony is offered is a specialist who is board certified, the expert w itness must be a specialist who is board certi fied in that specialty.

(b) Subject to subdivision (c), during the year immediately precedi ng the date of the occurrence that is the basis for the claim or action, de voted a majority of his or her professional time to eith er or both of the following:

( i ) The active clinical practice of the same health profession in w hich the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the a ctive clinical practice of tha t specialty.

( ii ) The instruction of students in an accredited health professiona l school or accredited residency or clinical research program in the same h ealth profession in which the party against whom or on whose behalf the testimony i s offered is licensed and, if that party is a specialist, an accredited heal th professional school or accredited residency or clin ical research program in the sam e specialty.

In it undisputed here that Gregal it did not meet the requiremen ts of MCL 600.2169.

The crux of the issue between the parties is whether plaintiff ’s attorney reasonably believed that Gregalit complied wi th the requirements of MCL 60 0.2169. Pursuant to MCL 600.2912d(1), a plaintiff’s attorney must only reasonably believe that the proposed expert meets the requirements for an expert witness. In determining the rea sonableness of an attorney’s belief,-3- this Court looks to the resources available at the time the aff idavit of merit was prepared.

Grossman v Brown , 470 Mich 593, 599-600; 685 NW2d 198 (2004). Because limited information is available to plaintiff’s attorney at the time th e affidavit of merit is prepared, he or she “must therefore be allowed considerable leeway in identifyi ng an expert affiant.” Bates v
Gilbert , 479 Mich 451, 458; 736 NW2d 566 (2007), citing Grossman , 470 Mich at 599. However, “such leeway cannot be unbounded. The plaintiff’s coun sel must invariably have a reasonable belief that the expert satisfies the requirements of MCL 600.2169.” Bates , 479 Mich

at 458.

We conclude that plaintiff’s attorney did not have a reasonabl e belief that Gregalit met the requirements for an expert witness. Initially, we note tha t plaintiff’s attorney never filed an affidavit or other documentary e vidence regarding the basis for his reasonable belief. From the existing record, it appears tha t plaintiff’s attorney undertook absolutely no inquiry into whether Gregalit was a qualified expert witness. Plaintiff’s attorney only attests, with no evidentiary support, that an associate at his prior law firm had previously used Gregalit as an expert in phlebotomy. We do not believe that unsupported assertion is su fficient to establish a reasonable belief of Gregalit’s qualifications. Plaintiff’s attorney assu med Gregalit was qualified, and did not request a resume or curriculum vitae, or proof of Gregalit’ s certification or license. Pursuant to the deposition, Gregalit’s cer tificate of phlebotomy was pla inly expired. In addition, a brief internet search showed that Gregalit’s emergency medical techni cian (EMT) license had expired by the time of the deposition. 2 Further, plaintiff’s attorney seemingly did not even ask Greg alit about his current employment. Even in plaintiff’s brief on app eal, plaintiff’s attorney states that Gregalit did not tell him the affidavit of merit, prepared by p laintiff’s attorney, was wrong; plaintiff’s attorney never asked if Gregalit met even the minim al requirements for an expert witness. The fact that plaintiff’s attorney sent Gregalit a pr epared affidavit of merit and Gregalit made changes to the document was not sufficient for plaintiff’s attorney to form a reasonable belief that Gregalit was qualifie d. Based on the record, plain tiff’s attorney failed to use the resources available to him at the time of the creating of the a ffidavit of merit, the most pertinent being Gregalit himself.

Our decision is consistent with this Court’s analysis in Geralds v Munson Healthcare

, 259 Mich App 225; 673 NW2d 792 (2003), rev’d on other grounds i n Kirkaldy v Rim

, 478 Mich 581; 734 NW2d 201 (2007). Geralds involved the plaintiff’s couns el’s belief regarding its expert witness’ board certificati on, where the defendant was bo ard certified in emergency medicine, but the plaintiff’s expert was not. The plaintiff’s counsel submitted an affidavit reflecting that he believed his expert, Dr. Podgorny, was board certified because (1) another board certified physician recommended Podgorny and indicated Po dgorny was board certified; (2) Podgorny was a former President of the American Board of Em ergency Medicine; (3) Podgorny was an examiner for the board and the board’s website indicated that examiners must be board certified and (4) in the attorney’s experience, he had never seen an instance where a physician was an officer of a specialty board but was not board certified. Nevertheless, Podgorny’s curriculum vitae did not indicate that he was board certified in emergency medicine.

2 A brief internet search also r evealed that phlebotomy is not a valid license in Michigan.-4- Geralds , 259 Mich App at 228-229. The trial court decided that counse l should have asked Podgorny if he was board certified and as a result, counsel’s b elief to the contrary was not
reasonable. The trial court struck the affidavit of merit and granted the defendant’s motion for summary disposition. On appeal, the Geralds Court stated:

It is unreasonable for an attorney to form a belief regarding t he board certification of a physician without asking the physician about his board cer tification. As skilled and experienced as plaint iff’s attorneys appear to be, the failure to ask the four word question, “Are you board certified?” and the failure to examine [the affiant’s] curriculum vitae, whi ch contains no mention of board certification in emergency medicine, were not reasonable under the circumstances . [ Id . at 233.]

This Court affirmed the trial court’s dismissal of the case wit h prejudice. Similarly, in the current case, plaintiff’s attorney did not even ask Gregalit if he currently worked in phlebotomy
or had an active license or certif icate in the medical field.

We also note further concerns about plaintiff’s attorney’s eff orts in this matter. Defendant first filed a motion to strike in November 2012, mont hs before the decision at issue here. Defendant pointed out tha t, in contrast to the affidavit of merit, Gregalit was not a licensed phlebotomist and was an actually an EMT. Even then, apparently , plaintiff’s attorney took no efforts to consult Gregalit regar ding his qualifications, claim ing to be ignorant of Gregalit’s failings until the deposition in August 2013. Surely, at that point, plaintiff’s attorney should have inquired into Gregalit’s q ualifications and quickly realiz ed he was unsuitable. Moreover, we are unconvinced that it was not until the deposition that pl aintiff’s attorney knew about Gregalit’s shortcomings, given th e fact that plaintiff’s attorn ey produced a new expert witness the same day as the deposition. Plaintiff’s attorney claims t o have begun searching for a new expert witness before the deposition based on concerns with Gre galit’s mental state. Simultaneously, however, plaintiff’s attorney claims that Grega lit “duped” him. Plaintiff’s attorney’s attempts to explain Gregalit’s shortcomings as both duplicitous and due to mental incompetency are inconsistent an d disingenuous. Moreover, our overall impression from Gregalit’s deposition was that G regalit was not i ntentionally d uplicitous. In fact, Gregalit readily testified regarding his work history. It is also concerning th at, although plaintiff’s attorney claims, with no evidentiary support, to have sent Gregalit plai ntiff’s medical records and other relevant case information, the enclosure letter sent to Gregali t listed the only attachment as the prepared affidavit of merit, and Gregalit stated at the deposit ion that he did not review or receive
the medical records. 3

3 We acknowledge that during the deposition Gregalit also states that he was unsure if he
received additional documents with the affidavit of merit. How ever, our overall impression of the deposition testimony was th at Gregalit did not receive or r eview the records. At one point, Gregalit said that he specifically told plaintiff’s attorney he did not want to review “X-rays or CAT scans,” because it was “out of my realm, my scope of practi ce and knowledge.” Despite that, plaintiff’s attorney included in the affidavit specifics regarding plaintiff’s damages, of which Gregalit admittedly had no knowledge or expertise.-5- Finally, we note that we do not disagree with the trial court’ s finding that plaintiff’s attorney did not intentionally d efraud the court. However, the inquiry is whether plaintiff’s attorney had a reasonable belie f. MCL 600.2912d(1). Even assu ming plaintiff’s attorney did not purposefully defraud the court, h e completely neglected to perf orm any inquiry into the qualification of Gregalit before s ubmitting the a ffidavit of me rit or within any reasonable amount of time thereafter. Thus, the trial court erred when it implic itly determined that the affidavit fulfilled the statutory requirements, and, thus, abused its dis cretion in denying plaintiff’s motion
to strike the affidavit of merit.

Defendant next argues that the trial court erred in allowing p laintiff to substitute a
corrected affidavit of merit. I nstead, defendant asserts, the trial court should have dismissed the case. We agree that the trial co urt should have dismissed the case based on the defective affidavit of merit. In addition, we do not believe that plaint iff should have been permitted to
amend his affidavit of merit to c omply with the statutory requi rements.

Again, questions of statutory in terpretation are reviewed de n ovo. Ligons , 490 Mich at 70. This Court interprets court rules “using the same principl es that govern the interpretation of

statutes.” Id . at 70. “This Court reviews a trial court’s decision to permi t a party to amend pleadings for an abuse of discretion.” In re Estate of Kostin , 278 Mich App 47, 51; 748 NW2d 583 (2008). “[A]n abuse of discretion occurs when the trial co urt’s decision is outside the range of reasonable and principled outcomes.” Id

.

Our Supreme Court has stated t hat “a plaintiff’s failure to fi le a timely [affidavit of merit] or to file a timely [affidavit of merit] that satisfies the req uirements of MCL 600.2912d(1) generally results in dismissal of the case.” Ligons , 490 Mich at 75. However, MCR 2.112(L)(2)(b) provides that “[a]n affidavit of merit or merito rious defense may be amended in
accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301.” MCR 2.118(A)(1) states that “[a] party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an advers e party, or within 14 days after serving the pleading if it does not require a responsive pleadi ng.” Otherwise, a party “may amend a pleading only by leave of the court or by written conse nt of the adverse party. Leave shall be freely given when justice so requires .” MCR 2.118(A)(2) (emphasis added). In turn, MCR 2.118(D) provides:

An amendment that adds a claim or defense relates back to the date of the original pleading if the claim or defense asserted in the amend ed pleading arose out of the conduct, transaction, or occurrence set forth, or at tempted to be set forth, in the original pleading. In a medical malpractice action, an amendment of an affidavit of merit or affidavit of merito rious defense relates back to the date of the original filing of the affidavit . [Emphasis added.]

MCL 600.2301 provides:

The court in which any action or proceeding is pending, has po wer to amend any process, pleading or proceeding in such action or pro ceeding, either in form or substance, for the furth erance of justice, on such term s as are just, at any time before judgment rendered therein. The court at every stage of the action or-6- proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties . [Emphasis added.]

Assuming plaintiff’s motion to file a new affidavit of merit w as effectively a motion to file an amended affidavit of merit, 4 our inquiry rests on whether de fendant’s substantial rights would be affected by allowing plaintiff to amend his affidavit of merit. MCL 600.2301. Recently, this Court has considered the meaning of substantial rights in relation to a medical malpractice action in Furr v McLeod , 304 Mich App 677; 848 NW2d 465 (2014). “The language in MCL 600.2301 requiring a court to disregard ‘any’ e rrors or defects if no substantial rights are affected plainly and unambiguously reaches both cont ent and noncontent errors or defects, as the term ‘any’ is all-inclusive.” Id . at 702-703. The Court stated:

Our construction of MCL 600.2301 is consistent with earlier Su preme Court precedent, which emphasized that the statute aims to abol ish technical errors in proceedings and to have cases disposed of as nearly a s possible in accordance with the substantial rights of the parties. [ Id. at 702 (citations and quotation marks omitted).]

The Court then went on to define and explain the meaning of sub stantial rights:

Generally speaking, an error or d efect affects substantial righ ts when a party incurs prejudice. See Black’s Law Dictionary (7th ed), p 1324 (A “substantial right” is “[a]n essential right t hat potentially affects the ou tcome of a lawsuit and is capable of legal enforcement and protection, as distinguishe d from a mere technical or procedural right.” ) The second sentence in MCL 60 0.2301 requires a
court to ask whether the error or defect affects substantial ri ghts. The issue boils down to whether the party was deprived of any consequential leg al benefit or opportunity or was otherwise harm ed because of the error or def ect. [ Id . at 704 (citations omitted).]

“It is necessary to examine the nature of a statutory error or defect and the legislative goal of a statute in order to determine whether a particular statutory vi olation affects a party’s substantial rights.” Id . at 705. “The purpose of the affidavits of merit is to deter frivo lous medical malpractice claims by verifying through the opinion of a qualif ied health professional that the
claims are valid.” Barnett v Hidalgo , 478 Mich 151, 163-164; 732 NW2d 472 (2007) (citation omitted).

4 We note that in the trial cour t, plaintiff’s motion was techni cally a motion to file a new affidavit of merit, not to amend the affidavit of merit. However, pursua nt to MCR 2.112, the proper procedure for plaintiff would have been to request to amend the affidavit of merit. We are not convinced that the label of plaintiff’s motion as a request to file a new affidavit as opposed to filing an amended affidavit shou ld be dispositive, as defendant suggests. Thus, to ensure proper
and full consideration of the i ssue on appeal, we treat plainti ff’s motion as a motion to amend the
affidavit of merit.-7- We conclude that defendant’s substantial rights were affected. The errors in this case reach beyond technical errors in the proceedings. After review ing the record, we cannot say that plaintiff attempted, in good fait h, to comply with statutory re quirements for an expert witness. Plaintiff filed his complaint in October 2012, and concerns reg arding the affidavit of merit were raised as early as November 2012. As discussed, supra , it does not appear that at the time of filing the complaint plaintiff’s attorney even attempted to com ply with the statutory requirements of MCL 600.2912d. Despite this, the parties commenced months o f discovery, which necessitated numerous motions to compel by defendant, only to d etermine that the affidavit of
merit was based on numerous falsi ties and statutory violations, which related to the qualification of the expert but also arguably to the merits of the case. The trial court acknowledged that the delay was caused by plaintiff. By this time, months had passed in the proceedings, and it was still unclear whether plaintiff had a legitimate claim because of plaintiff’s numerous and inexcusable statutory violations . Thus, defendant was unable t o properly prepare to defend against plaintiff’s claim. Therefore, we cannot say that defen dant has suffered no prejudice or harm because of plaintiff’s multiple statutory violations, and defendant’s substantial rights were affected. Accordingly, the case should be dismissed. Ligons , 490 Mich at 75. In addition, “dismissal must be without prejudice unless other grounds for t he dismissal exist, such as the expiration of the limitations period.” Id

.

Reversed and remanded for proceedings consistent with this opi nion. We do not retain jurisdiction. Defendant, the pr evailing party, may tax costs. MCR 7.219.

/s/ Karen M. Fort Hood
/s/ Kathleen Jansen
/s/ Michael F. Gadola