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STATE OF MICHIGAN COURT OF APPEALS

KENNETH HOBDY, Successor Personal Representative of the Estate of DONNY HARRISON, Deceased, and APRIL HARRISON, Personal Representative of the Estate of DONNY HARRISON, Deceased, Plaintiffs-Appellees, v HARPER UNIVERSITY HOSPITAL, DETROIT MEDICAL CENTER, and PAUL S. SWERDLOW, M.D., Defendants-Appellants.

UNPUBLISHED January 22, 2009

No. 258114 Wayne Circuit Court LC No. 03-331642-NH

ON REMAND

KENNETH HOBDY, Successor Personal Representative of the Estate of DONNY HARRISON, Deceased, and APRIL HARRISON, Personal Representative of the Estate of DONNY HARRISON, Deceased, Plaintiffs-Appellees, v HARPER UNIVERSITY HOSPITAL, DETROIT MEDICAL CENTER, and PAUL S. SWERDLOW, M.D., Defendants-Appellants. No. 260666 Wayne Circuit Court LC No. 03-331642-NH

KENNETH HOBDY, Personal Representative of the Estate of DONNY HARRISON, Deceased, Plaintiff-Appellee,

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v HARPER UNIVERSITY HOSPITAL, DETROIT MEDICAL CENTER, and PAUL S. SWERDLOW, M.D., Defendants-Appellants.

No. 270471 Wayne Circuit Court LC No. 06-601087-NH

Before: Wilder, P.J., and Borrello and Beckering, JJ. PER CURIAM. We previously issued an opinion in this case reversing the trial court's denial of summary disposition.1 On March 24, 2008, the Supreme Court issued an order reversing in part our decision in Docket Nos. 258114 and 260666, reinstating the trial court's denial of defendants' motion for summary disposition and remanding for this Court to consider defendants' remaining issues that were not addressed in our previous opinion. Hobdy v Harper Univ Hosp, 480 Mich 1133; 745 NW2d 787 (2008). On remand, we affirm, in part, and reverse and remand, in part. I. Docket No. 258114 Defendants argue that the trial court erred in granting plaintiff's motion to amend the complaint to substitute plaintiff Kenneth Hobdy as the successor personal representative for plaintiff's decedent. This Court will not reverse a trial court's grant or denial of a motion to amend a complaint unless the trial court has abused its discretion. Casey v Auto-Owners Ins Co, 273 Mich App 388, 400-401; 729 NW2d 277 (2006). We hold that the trial court did not abuse its discretion in permitting plaintiff to amend the complaint to substitute the successor personal representative. We note that the rationale for amending the complaint no longer exists because the initial lawsuit filed by the first personal representative was timely under Mullins v St Joseph Mercy Hosp, 480 Mich 948; 741 NW2d 300 (2007), and the lawsuit commenced by Hobdy has been dismissed on res judicata grounds. Under MCL 700.3613, however, "a successor personal representative must be substituted in all actions and proceedings in which the former personal representative was a party." Thus, the trial court did not abuse its discretion in granting plaintiff's motion to amend the complaint to substitute plaintiff Hobdy as the successor personal representative. II. Docket No. 260666 A. Affidavit of Merit

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Hobdy v Harper Univ Hosp, unpublished opinion per curiam of the Court of Appeals, issued October 18, 2007 (Docket Nos. 258114; 260666; 270471).

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Defendants argue that the trial court erred in denying their motion for summary disposition based on the insufficiency of the affidavit of merit. According to defendants, plaintiff's affidavit of merit was insufficient under MCL 600.2169 because plaintiff's attorney could not have formed a reasonable belief that the pediatrician who signed the affidavit of merit, Dr. Arthur J. Provisor, matched the board certification of defendant Dr. Paul S. Swerdlow. This issue involves the interpretation of MCL 600.2912d and MCL 600.2169. Statutory interpretation is a question of law that this Court reviews de novo. Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 472 Mich 479, 488; 697 NW2d 871 (2005). This Court's review of a trial court's grant of summary disposition pursuant to MCR 2.116(C)(10)2 is as follows: This Court reviews de novo a trial court's grant or denial of summary disposition under MCR 2.116(C)(10). Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. Downey v Charlevoix Co Rd Comm'rs, 227 Mich App 621, 625; 576 NW2d 712 (1998). The pleadings, affidavits, depositions, admissions, and any other documentary evidence submitted by the parties must be considered by the court when ruling on a motion brought under MCR 2.116(C)(10). Downey, supra at 626; MCR 2.116(G)(5). When reviewing a decision on a motion for summary disposition under MCR 2.116(C)(10), this Court "must consider the documentary evidence presented to the trial court `in the light most favorable to the nonmoving party.'" DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 539; 620 NW2d 836 (2001), quoting Harts v Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999). A trial court has properly granted a motion for summary disposition under MCR 2.116(C)(10) "if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law." Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). [Clerc v Chippewa Co War Mem Hosp, 267 Mich App 597, 601; 705 NW2d 703 (2005), remanded in part 477 Mich 1067 (2007).] The sufficiency of an affidavit of merit is governed by MCL 600.2912d and MCL 600.2169. MCL 600.2912d provides, in relevant part: (1) Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under section 2169. The affidavit of merit shall certify that the

Although defendants moved for summary disposition under MCR 2.116(C)(8), the trial court considered documentary evidence beyond the complaint in ruling on defendants' motion. Therefore, we review whether the trial court properly denied defendants' motion for summary disposition under MCR 2.116(C)(10).

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health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff's attorney concerning the allegations contained in the notice and shall contain a statement of each of the following: (a) The applicable standard of practice or care. (b) The health professional's opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice. (c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care. (d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice. [Footnote omitted; emphasis added.] MCL 600.2169 provides, in relevant part: (1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria: (a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty. (b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following: (i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty. (ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty. [Emphasis added.]

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With respect to the matching practice element of

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