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Earlier this week, a jury awarded an Owosso, Michigan, woman $2.9 million in her medical malpractice action against an area hospital, two doctors, and their professional corporations. In the process, they have closed the latest chapter in the nearly nine-year-old case.

Sue Apsey and her husband commenced their lawsuit in November 2001, alleging that doctors negligently performed an exploratory laparotomy, resulting in serious medical complications including infection. The defendants successfully had the case dismissed, arguing that the Affidavit of Merit (a document required for all medical malpractice actions in Michigan) had been prepared out of state and had not been properly authenticated under Michigan law. The Michigan Court of Appeals upheld the dismissal.

At issue was the apparent conflict between two statutes – the Uniform Recognition of Acknowledgments Act (URAA) and a provision of the Revised Judicature Act (RJA). Each statute provides a different method of authenticating out-of-state documents, with the RJA provision requiring an additional certification Ms. Apsey and her husband had failed to include until after the statute of limitations had run. The Court of Appeals reasoned that the RJA controlled in this instance because it dealt more specifically with documents prepared for court (such as affidavits of merit) than did the URAA.

In 2007, the Michigan Supreme Court reversed the rulings of the lower courts, breathing new life into the Apseys’ case. Writing the opinion for the Court was Justice Kelly (now Chief Justice), who convincingly explained that the URAA and RJA provide alternative, co-equal methods of authenticating out-of-state documents. The highly regarded opinion is well-founded on the language chosen by the legislature when drafting the URAA, which plainly states that "[n]otarial acts may be performed outside this state for use in this state with the same effect as if performed by a notary public of this state[.]" In addition, the URAA expressly provides that it is "an additional method of proving notarial acts[,]" not a replacement for or an invalidation of the method prescribed by the RJA. As a result of the Court’s ruling, the Apseys’ Affidavit of Merit was valid and their case was allowed to continue. It was remanded to the trial court, where the jury ultimately reached its verdict in favor of the plaintiffs.

Unfortunately, the Apseys will never see all of the money to which the jury believes they are entitled. Even though a duly empaneled group of reasonable individuals agreed that $3 million would be adequate compensation for Ms. Apsey’s injuries, Michigan’s malpractice damage caps will reduce the award considerably.

One Comment

  1. Gravatar for Mike Bryant

    Yet another example of the miscarriage of justice that caps perpetuate. It's great that the plaintiff will be able to get some justice.

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