Lee v. Putz, (6th Cir. 2005)
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0684n.06
Filed: August 9, 2005
No. 04-1341
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HUN DAE LEE
Plaintiff-Appellant
ON APPEAL FROM THE UNITED
v.
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN
JOHN PUTZ, M.D.
Defendant-Appellant
EDWARD W. SPARROW HOSPITAL
ASSOCIATION
Defendants.
Before: MARTIN, COOK, and LAY,* Circuit Judges.
PER CURIAM.
The recent Apsey v. Mem. Hosp., § 600.2102(4) to authenticate the credentials of a sister-state notary public must accompany an affidavit of merit (required with any medical malpractice complaint) to initiate a valid medical malpractice action and toll the limitations period. Id. Lee v. Putz Agreeing with, and even citing as persuasive authority, Chief District Court Judge Robert Holmes Bell's predictive conclusion, the Apsey court assessed the competing notarial statutes and generally concluded that the Michigan certification-of-notarial-authority provision pertains particularly to affidavits "officially received and considered, by the judiciary," including medical malpractice affidavits of merit. Id. From that premise the court reasoned that "the special certification is a necessary part of an affidavit submitted to the court to meet the requirement of MCL 600.2921d(1)." Id. Thus, absent the certification, the resulting, defective affidavit "fail[s] to support a medical malpractice complaint for purposes of tolling the period of limitations." Id.
(citing Geralds v. Munson Healthcare, 673 N.W.2d 792, 800 (Mich. Ct. App. 2003)).
Where the Apsey court then differed with Chief Judge Bell was in its conclusion that fairness and justice require a prospective application of its decision on this "issue of first impression whose resolution was not clearly foreshadowed." Id. (internal quotations and citations omitted). Apsey thus permits non-compliant plaintiffs, whose cases were pending when Apsey issued, to file the proper certification. Because Lee falls in this category, the district court erroneously dismissed his case.
The case is reversed and remanded for proceedings consistent with this opinion.
* The Honorable Donald P. Lay, Circuit Judge for the United States Court of Appeals for the Eighth Circuit, sitting by designation.
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