Michigan ruling boosts standard for liability case affidavits

At first blush, a recent Michigan appellate court ruling might seem like a blessing for doctors. Some attorneys estimate that if the decision stands, 50% to 70% of all medical liability lawsuits pending against physicians in Michigan courts could be wiped out.

Not bad odds if you're a physician defending a medical liability lawsuit you believe was wrongly filed.

But doctors need to be careful what they wish for. The decision could help some physicians if the courts allow it to stand, but it could hurt other doctors, as well as patients who were truly injured.

At issue is that the State of Michigan Court of Appeals' recent ruling in Apsey v. Memorial Hospital sets higher standards than most lawyers commonly use to obtain the affidavits that plaintiffs must file for a medical liability lawsuit to go forward. Many cases simply would be dismissed because the plaintiffs used an out-of-state expert to sign the affidavit without meeting requirements that the appeals court now says are necessary.

In Michigan, doctors also must file an affidavit when a lawsuit is initiated. Consequently, the ruling could impact their cases as well.

Physicians need an affidavit from another physician that says there's a meritorious defense that the defendant doctor can use at trial. Defendant physicians are far less likely to use out-of-state experts than plaintiffs, but the appellate court ruling still could wipe out the defenses that some physicians would put forward. Out-of-state defense experts are particularly common in "bad-baby" cases -- cases that can result in large jury awards.

The Michigan State Medical Society is watching this case closely, but hasn't taken a position. But lawyers on all sides -- including many who defend doctors -- say allowing this appellate court ruling to stand wouldn't be in the best interest of justice.

The Michigan Trial Lawyers, a group of plaintiffs' attorneys; the State Bar of Michigan, generally considered a neutral organization; and the Michigan Defense Trial Counsel, a group of defense attorneys, each filed a friend-of-the-court brief supporting the plaintiff's request for the appellate court to reconsider its decision.

James Bodary, immediate past-president of the Michigan Defense Trial Counsel who primarily does medical liability defense work, said members of his organization are filing and arguing motions to dismiss cases against physician-clients based on the appellate court decision in Apsey.

But, he said, the lawyers organization also has weighed what the decision would mean to the overall justice system.

"What would be the best outcome for an individual doctor or hospital may not be the best for our system," Bodary said in an e-mail. "The articles of the MDTC list among its purposes working to improve the adversary system of jurisprudence and encouraging fair and just disposition of claims. All attorneys, whether representing plaintiff or defendant, have the ongoing duty to act as guardians of the system's fairness."

Michael Stephenson, an East Lansing, Mich., attorney representing one of the physicians named in the Apsey lawsuit, takes issue with the criticism aimed at the appellate court ruling.

He said the court is enforcing a law on the Michigan books that is there to prevent fraud. And he said he has yet to meet a law firm or lawyer who will have 50% to 75% of their cases dismissed. Stephenson estimates that 10% or fewer of the pending cases ultimately would be dismissed with no chance for a lawyer to re-file.

"It will affect some cases, but it is being exaggerated," he said.

Applying a higher standard

When Sue H. Apsey and Robert Apsey sued Memorial Hospital and two physicians in Shiawassee, Mich., alleging medical negligence, her attorneys filed the affidavit of merit that the state has required since 1994.

No one disputes that the Apseys needed an affidavit or that an out-of-state affidavit needed to be notarized. The controversy is over what makes a valid out-of-state notarization.

In the Apseys' case, the affidavit of merit came from a Pennsylvania doctor. A notary public in Pennsylvania put the normal notarial seal on the document. That's the way plaintiff and defense attorneys have commonly handled out-of-state affidavits in Michigan, basing that standard on the Uniform Recognition of Acknowledgements Act the state adopted in 1970.

An attorney for one of the physicians named in the lawsuit and the hospital, though, challenged the status quo. Hospital officials did not return calls for comment, but court documents show that the defendants argued that the affidavit of merit not only needed to be notarized, but that the document also must contain a certificate proving that the notary has authority in the out-of-state county.

Memorial Hospital, which does business as Memorial Healthcare Center, and the doctors argued that the more demanding requirement outlined in a 1924 Michigan Supreme Court decision and in a 1963 law requires that the clerk of court in the county where the affidavit was signed must certify the notary's signature.

The Shiawassee Circuit Court and a Michigan Court of Appeals three-judge panel agreed with the hospital's argument that the law technically requires the clerk of court's certification.

The appellate court said the Uniform Recognition of Acknowledgements Act says in part that "nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of the state."

"As such, the URAA does not diminish or invalidate the more specific and more formal requirements of [the 1963 law]," the court concluded. "The trial court correctly concluded that plaintiffs' affidavit of merit failed because of the lack of special certification regarding the out-of-state officer who notarized it."

The Michigan Court of Appeals also said that even though the Apseys later filed the extra certification for the notary, the information was filed after the statute of limitation had expired; therefore, their lawsuit could not go forward.

"It was the right decision," Stephenson said. "The question is which law should the court have followed. ... I agree the result may not be ideal for some, but we can't ignore certain laws on the books."

Challenging the court's interpretation

The ruling took many by surprise, and they fear that the implications could be mammoth.

In cases in which the statute of limitations hasn't run out, lawyers can go back and have the clerk of court sign off on the out-of-state notary who signed the out-of-state affidavit. But the status of cases that are beyond their statute of limitations is uncertain. Potentially, cases on their way to trial could be dismissed if they don't have the proper documentation.

Legal experts say hundreds of lawyers on both sides already have filed motions asking the courts to throw out cases that include an affidavit from the opposing side signed by an out-of-state expert without the extra documentation for the notary.

Some judges have said they will apply the appellate court ruling only to cases filed after the ruling was issued. But many courts seem to be holding off on making decisions as lawyers work to have the ruling overturned.

Most legal experts believe the courts will overturn the decision.

"It's horribly wrong legally," said Royal Oak, Mich., attorney Mark Granzotto, representing the Apseys.

George Googasian, the State Bar of Michigan's past president, said the decision deprives even those who everyone agrees have a viable lawsuit.

"Legitimately injured people could go without recourse," he said.

Stephenson disagrees. In many cases, he said, the statute of limitations will not have run out, so plaintiffs will be able to re-file their cases, and numerous other cases involve affidavits that came from in-state doctors.

He also said a handful of law firms had been getting the clerk of court to certify the notary. Stephenson believes he was the first lawyer to raise this issue in court five years ago and that some lawyers have been getting the extra signature since then.

"Other people took the dangerous position that the court wouldn't enforce the law," he said.

But Coalition and Center for Ethical Medical Testimony President Louise B. Andrew, MD, an attorney, said she does not see how the ruling can stand. "There is no doubt that it will affect both sides significantly," she said. "Clearing court dockets is a laudable goal, but not at the expense of legitimate plaintiffs and defendants who relied on more recent legislation and prior rulings in their attempts to follow established procedures in obtaining affidavits of merit and defensibility."