If a plaintiff in Michigan files a medical liability lawsuit, they must, with few exceptions, file the affidavit of merit within the statute of limitations or have the lawsuit dismissed with prejudice, physicians tell the Michigan Supreme Court.

Plaintiffs who obtained an affidavit of merit but didn’t file it with their complaint alleging that a physician and other defendants negligently performed surgery are asking Michigan’s highest court to let their lawsuit go forward even though they didn’t meet any of the criteria for an exception. The ruling could overturn what has been the law for more than 20 years.

The question before the Michigan Supreme Court involves whether a case from 2000, Scarcella v. Pollack, was properly decided. In the case, the state’s top court ruled that a medical malpractice complaint filed without an affidavit of merit does not signal the beginning of legal proceedings and does not temporarily stop the statute of limitations for bringing a medical malpractice complaint.

Scarsella’s holding … effectuates the legislature’s intent to make a demonstration of merit at the inception of the action mandatory and to thereby deter frivolous claims. A decision to overrule Scarsella will create an open-ended exception” to the law, the Litigation Center of the American Medical Association and State Medical Societies and the Michigan State Medical Society (MSMS) tell the Michigan Supreme Court in an amicus brief in the case—Ottgen v. Katranji—that could potentially upend case law.

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.