Court overturns trial judge; summarily dismisses malpractice case filed with defective Affidavit of Merit

Ryan Lohman sued Macomb County's Family Doctor Clinic after he suffered permanent injury while having blood drawn.  His lawyers filed the proper Notice of Intent to Sue and filed with the Complaint an Affidavit of Merit signed by a phlebotomist who had served as an expert in a prior case.  It turned out that the phlebotomist's affidavit contained false statements:  at his deposition he admitted that his certification had lapsed; he had not maintained his EMT license and he may not have been employed in the field at the time of his deposition.  The Defendant then sought the dismissal of Lohman's case, because it had not been accompanied by a qualifying Affidavit of Merit.

The trial judge struck the phlebotomist's Affidavit but allowed the plaintiff to file a new Affidavit from a qualified expert.  The defense appealed, arguing that under the tort "reform" rules, the plaintiff's case should have been dismissed without the possibility of filing an amended affidavit.  The reviewing Court pointed out that at the time an Affidavit of Merit is prepared, the Plaintiff's attorney "has limited resources available" and is therefore "allowed considerable leeway:"  if the attorney had "a reasonable belief" that his expert met the qualifications, he must be allowed to amend the affidavit and continue the case.

Even though the witness signed an affidavit in which he claimed to be qualified and even though he admitted that he never told the attorney that the affidavit was wrong, the Court overturned the trial judge's decision and dismissed the malpractice case.  It concluded that the attorney did not entertain a reasonable belief that the witness was qualified because the attorney did not maintain that he had asked the witness if he was lying in his affidavit.  The reviewing judges cited a prior "reform" case where a similar result obtained, even though the unqualified-because- uncertified Emergency Medicine witness who signed an affidavit was a former President of the American Board of Emergency Medicine, an examiner for the Board, and the website of the Board documented that examiners must be certified.  Both courts held that despite the erroneous attestation by the witness and the other corroborating facts, since the lawyer could not testify that he asked about qualifications and was lied to, his belief of qualification was unreasonable.

The Court achieved this outcome--the summary dismissal of a case which a second phlebotomist deemed meritorious--despite Court Rule language mandating that amendment of pleadings be allowed "whenever justice requires" so as to "abolish technical errors in proceedings and to have cases disposed of as nearly as possible in accordance with the substantial rights of the parties."