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STATE OF MICHIGAN COURT OF APPEALS

SANDER KALAJ and ALIDA KALAJ, Plaintiffs-Appellants, v SYED MAHMOOD ALI KHAN, M.D., and BASHA DIAGNOSTICS, P.C., Defendants-Appellees.

FOR PUBLICATION February 14, 2012 9:20 a.m. No. 298852 Oakland Circuit Court LC No. 2009-097742-NH

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Before: M. J. KELLY, P.J., and OWENS and BORRELLO, JJ. BORRELLO, J. Plaintiffs appeal as of right the February 19, 2010, trial court order granting defendants' motion to strike plaintiffs' affidavit of merit and dismissing plaintiffs' complaint without prejudice in this action alleging medical malpractice. For the reasons set forth in this opinion, we reverse and remand for further proceedings consistent with this opinion. I. FACTS AND PROCEEDINGS BELOW Plaintiff Sander Kalaj1 injured his head and neck in a diving accident in July 2006. On July 31, 2006, plaintiff's treating physician referred him to defendant Basha Diagnostics, P.C., for cervical-spine x-rays. Defendant Syed Mahmood Ali Khan, M.D., a diagnostic radiologist, reviewed plaintiff's x-rays, and concluded that they were negative for a spinal fracture. Eight days later, on August 8, 2006, plaintiff, complaining of worsening symptoms, was treated by Dr. Gregory Cesul, a chiropractor. Cesul also took a set of cervical-spine x-rays, which he opined to be "consistent with a C5 fracture." Cesul referred plaintiff to William Beaumont Hospital for further evaluation and a neurosurgical consultation. Additional x-rays and a CT scan performed at Beaumont showed that plaintiff had suffered a C5 fracture. The results of an MRI demonstrated "a C5 tear drop fracture with foraminal narrowing and mass effect on the spinal cord."

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From this point onward, Sander Kalaj will be referred to simply as "plaintiff," while both named plaintiffs will be referred to jointly as "plaintiffs."

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Plaintiffs filed the instant medical malpractice action against defendants in January 2009, premised on the failure to properly diagnose the spinal fracture on or about July 31, 2006. In support of their complaint, plaintiffs provided an affidavit of merit from diagnostic radiologist Stuart Mirvis, M.D., who averred that he had reviewed plaintiffs' notice of intent and medical records from William Beaumont Hospital and "Basha Diagnostics

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