Hun Dae LEE, Plaintiff-Appellant, v. John PUTZ, M.D., Defendant-Appellant, Edward W. Sparrow Hospital Association, Defendants, 148 F. App'x 383

PER CURIAM. The recent Apsey v. Mem. Hosp., 702 N.W.2d 870, 266 Mich.App. 666 (2005), decision of the Michigan Court of Appeals resolves this appeal in favor of Plaintiff-Appellant, Hun Dae Lee. The Apsey court considered the same issue presented here — that is, whether the special certification required by Mich. Comp. Law § 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.

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, 259 Mich.App. 225, 673 N.W.2d 792, 800 (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.