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A Better Partnership
September 18, 2015

MSC to hear mini-oral argument on the application of the 91-day extension for filing an affidavit of merit and whether billing records are considered “medical records

The Michigan Supreme Court granted mini-oral argument in Wade v McCadie, No. 151196, to consider (1) whether the 91-day extension provided in MCL 600.2912d(3) for filing an affidavit of merit applies where the plaintiff claims that the defendants did not produce all medical records within 56 days after receipt of the notice of intent to sue; (2) whether the defendants were obligated to explain that certain records could not be produced; and (3) whether billing records are medical records for purposes of MCL 600.2912b(5).
 
On August 21, 2012, James Wade notified defendants St. Joseph Health System and Hale St. Joseph’s Medical Clinic of his intent to file a malpractice claim against his doctor, William McCadie. Pursuant to MCL 600.2912b(5), Wade requested access to all medical records, including billing records and laboratory results from 1979 to 2012, within 56 days. On February 22, 2013, Wade filed his complaint. Defendants responded, stating that all medical records prior to 1992 had been lawfully destroyed. Subsequently, defendants moved for summary disposition, arguing that Wade had failed to file an affidavit of merit with his complaint as required by MCL 600.2912d. On May 28, 2013, Wade responded with an accompanying affidavit of merit, claiming that he was permitted to file the affidavit of merit within 91 days of filing the complaint under MCL 600.2912d(3) because defendants failed to provide him with his complete medical records within 56 days of receiving the notice of intent. Defendants claimed that they had provided all medical records within their control. The trial court granted the defendants’ motion.
 
The Court of Appeals reversed the trial court’s decision, concluding that under the plain language of MCL 600.2912d(3), the plaintiff may file an affidavit of merit within 91 days of filing the complaint if the defendant fails to provide all medical records within 56 days of receiving the plaintiff’s notice of intent to sue. Because the defendants failed to provide Wade with his complete medical records prior to 1992 and failed to provide a reason for not supplying these records, the court held that the 91-day extension applied. In addition, the court held that the billing records sought by Wade were “medical records” because they pertained to his health care, medical history, or medical condition. Judge Meter dissented, arguing that the 91-day extension should not apply because the defendants provided Wade with sufficient medical records to execute a proper affidavit of merit.
 
The Michigan Supreme Court has ordered oral argument to consider whether to grant defendant’s application for leave to appeal.

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