The staff comment is not an authoritative construction by the Court.

Order February 16, 2010 ADM File No. 2009-13 Amendment of Rules 2.112 and 2.118 of the Michigan Court Rules Michigan Supreme Court Lansing, Michigan Marilyn Kelly, Chief Justice Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway, Justices On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, the following amendment of Rules 2.112 and 2.118 of the Michigan Court Rules are adopted, effective May 1, 2010. [Additions are indicated by underlining and deletions are indicated by strikeover.] Rule 2.112. Pleading Special Matters. (A)-(K)[Unchanged.] (L) Medical Malpractice Actions. (1) In an action alleging medical malpractice filed on or after October 1, 1993, each party must file an affidavit as provided in MCL 600.2912d, and 600.2912e. Notice of filing the affidavit must be promptly served on the opposing party. If the opposing party has appeared in the action, the notice may be served in the manner provided by MCR 2.107. If the opposing party has not appeared, the notice must be served in the manner provided by MCR 2.105. Proof of service of the notice must be promptly filed with the court. (2) In a medical malpractice action, unless the court allows a later challenge for good cause: (a) (b) all challenges to a notice of intent to sue must be made by motion, filed pursuant to MCR 2.119, at the time the defendant files its first response to the complaint, whether by answer or motion, and all challenges to an affidavit of merit or affidavit of meritorious defense, including challenges to the qualifications of the signer, must

2 be made by motion, filed pursuant to MCR 2.119, within 63 days of service of the affidavit on the opposing party. An affidavit of merit or meritorious defense may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301. (M) [Unchanged.] Rule 2.118. Amended and Supplemental Pleadings. (A)-(C)[Unchanged.] (D) (E) Relation Back of Amendment. An amendment that adds a claim or defense relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading. In a medical malpractice action, an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing of the affidavit. [Unchanged.] Staff Comment: The amendments of MCR 2.112 set a limit on the period for raising challenges to affidavits of merit and meritorious defense and notices of intent in medical malpractice actions. The amendments also allow revision under MCR 2.118 and MCL 600.2301. The amendment of MCR 2.118 explicitly states that the amended affidavit of merit or meritorious defense relates back to the date of the affidavit s original filing. The staff comment is not an authoritative construction by the Court. KELLY, C.J. (concurring). I concur in the adoption of the amendments of Michigan Court Rules 2.112 and 2.118. I write separately, however, to correct any misunderstanding left by the dissenting statements. The amendments of MCR 2.112 and 2.118 serve to inject logic and equity into the procedural requirements governing medical malpractice cases. MCR 2.112(L)(2)(a), as amended, requires a defendant to challenge a notice of intent to sue in the defendant s first response to the complaint. This is not a novel concept. Rather, it is entirely consistent with the time limits imposed on defendants asserting other affirmative defenses. See, e.g., MCR 2.116(C)(1) to (3) and (5) to (7); MCR 2.116(D)(1), (2). The affirmative defenses of lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process must be raised in a party s first motion under MCR 2.116 or in the party s responsive pleading, whichever is filed first. The affirmative defenses of (1) lack of legal capacity to sue, (2) that another action has been initiated

3 between the same parties involving the same claim, (3) that the claim is barred because of release, payment, prior judgment, immunity granted by law, the statute of limitations, the statute of frauds, an agreement to arbitrate, infancy or other disability of the moving party, or assignment, and (4) that another disposition of the claim was made before commencement of the action must be raised in a party s responsive pleading unless the grounds are stated in a motion filed under MCR 2.116 before the party s first responsive pleading. These limits promote judicial economy and efficiency and ensure that preliminary issues are disposed of quickly. As amended, MCR 2.112(L)(2)(b) permits a party to amend an affidavit of merit or an affidavit of meritorious defense in accordance with MCR 2.118 and MCL 600.2301. Indeed, our court rules explicitly favor amendments of pleadings. MCR 2.118(A)(1) provides that a party may amend a pleading (1) once as a matter of course within 14 days after being served with a responsive pleading by an adverse party or (2) within 14 days after serving the pleading if it does not require a responsive pleading. MCR 2.118(A)(2) further states that leave to amend a pleading shall be freely given when justice requires it. Thus, any claim that the court rule amendments adopted today represent a radical departure from traditional procedural practice is unsupportable. By statute, affidavits of merit must be filed in conjunction with medical malpractice complaints. MCL 600.2912d(1). Thus, they are essentially pleadings. The amendments of MCR 2.112(L) and 2.118(D) bring the procedural rules governing medical malpractice actions into conformity with the rules governing amendments of other pleadings. As amended, MCR 2.118(D) now permits relation back of amendments of affidavits of merit or affidavits of meritorious defense. Again, the court rule amendments merely bring medical malpractice procedural requirements in line with those applicable to other civil actions. As long as the amendment added a claim or a defense that arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading, our court rules already permitted the relation back of amendments of pleadings. The court rule amendments adopted today merely clarify that relation back includes medical malpractice claims. Indeed, there is no legal justification for preventing a party in a medical malpractice action from amending an affidavit of merit or an affidavit of meritorious defense when parties in other actions are freely and routinely permitted to do so. The claim is made that these court rule amendments are inconsistent with Kirkaldy v Rim 1 and run afoul of the statute of limitations. However, the amendments do not overrule that decision, nor are they inconsistent with the statute of limitations. Kirkaldy held that if an affidavit of merit is successfully challenged, the proper remedy is dismissal without prejudice. The plaintiff is left with whatever time remains in the period of 1 Kirkaldy v Rim, 478 Mich 581 (2007).

limitations to file a complaint with a conforming affidavit of merit. 2 Under our amended court rules, which are permissive in nature, affidavits of merit may be amended in accordance with MCL 600.2301 and relate back to the date of the original filing of the affidavit. MCL 600.2301 provides: The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties. Thus, the Legislature has made clear that, at a court s discretion, amendment should be permitted in furtherance of justice or when a defect in the proceedings does not affect the substantial rights of the parties. Our court rule amendments therefore reflect a balance between the remedy of dismissal without prejudice under Kirkaldy and leave to amend with relation back of the amended affidavits of merit. If a court permits an amended affidavit of merit, MCR 2.118(D) applies. The amended affidavit of merit relates back. If a court denies a request to amend a defective affidavit of merit, then Kirkaldy provides the appropriate course of action. The action is dismissed without prejudice. Irrespective of the amendments adopted today, the period of limitations for medical malpractice actions remains the same. It is merely the application of that limitations period that may change in certain circumstances. This change is premised on the Legislature s policy determination that, in some instances, a court may amend a pleading in furtherance of justice when the substantial rights of the parties are not affected. 3 Defendants still must be provided with a complaint and affidavit of merit within the applicable time. Defendants will still be on notice of the claims against them within the requisite time period and will be fully aware of the conduct, transaction, or occurrence at issue as set forth in the original pleadings. Finally, today s court rule amendments do not tread on substantive law. Rules governing the filing and amendment of pleadings are inherently procedural in nature. Such rules do not modify or change the statutory period in which those pleadings must be filed. The amended rules do no more to alter the statutory period of limitations than the existing rules. Before these amendments, the court rules expressly permitted the 4 2 Id. at 586. 3 MCL 600.2301.

5 amendment of pleadings and the relation back of amendments in other contexts. The amended rules do the same with respect to medical malpractice claims. Hence, the period of limitations for medical malpractice claims remains unchanged. The court rule amendments simply permit parties in certain instances to amend affidavits of merit or affidavits of meritorious defense and cause them to relate back to the date of the originally filed affidavit. Accordingly, the court rule amendments are within this Court s authority to promulgate and amend general rules governing practices and procedure in the supreme court and all other courts of record.... MCL 600.223; see also Const 1963, art 6, 5. CORRIGAN, J. (dissenting). I join Justice MARKMAN S dissenting statement regarding the Court s adoption of the amendments of Rules 2.112 and 2.118 of the Michigan Court Rules. I write separately to address two points. First, although a majority has now adopted amendments inconsistent with Kirkaldy v Rim, 478 Mich 581 (2007), during our October 8, 2009, public administrative conference, Justice CAVANAGH expressly asserted that the amendments of MCR 2.112 and MCR 2.118 would not affect the statute of limitations and that Kirkaldy remains good law. Specifically, after Justice HATHAWAY moved to adopt these amendments, Justice CAVANAGH stated: That s the proposal, Attachment A, of the October 1st? I would support that. I don t view- that proposal is silent as to the statute of limitations. So I don t see the statute of limitations restrictions that Kirkaldy pointed out are still on the books. [ ] This does not obviate the statute of limitations in my view. 4 When I asked Justice CAVANAGH, So what is the objection to so stating in the rule as it seems that there is a disagreement with your position on relation back from Justice HATHAWAY? he responded, I don t think it s necessary. 5 Similarly, during our December 10, 2009, public administrative conference, Chief Justice KELLY asserted that 4 See minutes 23:26 to 24:09 of the October 8, 2009, public administrative conference, available at <http://www.michbar.org/courts/virtualcourt.cfm> (accessed February 4, 2010). 5 See minutes 24:10 to 24:23 of the October 8, 2009, public administrative conference, available at <http://www.michbar.org/courts/virtualcourt.cfm> (accessed February 4, 2010).

[i]t has to be pointed out that Kirkaldy is not being overruled here. 6 Nonetheless, Chief Justice KELLY contradicts her December 10, 2009, public view with her current suggestion that trial courts can choose to enforce either Kirkaldy or the court rules in a given case. 7 So overruling Kirkaldy is delegated to the trial bench as they see fit. Kirkaldy should remain on the books until a majority of this Court overrules it. Stated another way, all lower courts and tribunals are bound by [Kirkaldy] and must follow it even if they believe that it was wrongly decided or has become obsolete. 8 Instead, Chief Justice KELLY candidly authorizes trial courts to overrule our opinions and modify the substantive law as they think best. Second, in resolving whether Kirkaldy or the amendments of MCR 2.112 and MCR 2.118 govern future medical malpractice cases, the discerning lawyer should observe that these amendments implicate matters of substantive law. I acknowledge the Court s authority to promulgate and amend general rules governing practices and procedure in the supreme court and all other courts of record.... 9 As Justice MARKMAN cogently explains, however, the Legislature, and not this Court, is responsible for modifying the statute of limitations in medical malpractice cases. Notably, Justice HATHAWAY moved to adopt these amendments at the October 8, 2009 administrative conference in part because the Legislature has had this bill [currently HB 4571] for over five years and has taken no action on it. 10 The speed with which the Legislature acts does not allow us to sidestep the legislative process. We lack the authority to enact 6 6 See minutes 8:20 to 8:26 of the December 10, 2009, public administrative conference, available at <http://www.michbar.org/courts/virtualcourt.cfm> (accessed February 4, 2010). 7 Specifically, Chief Justice KELLY states: If a court permits an amended affidavit of merit, MCR 2.118(D) applies. The amended affidavit of merit relates back. If a court denies a request to amend a defective affidavit of merit, then Kirkaldy provides the appropriate course of action. The action is dismissed without prejudice. 8 Paige v Sterling Hts, 476 Mich 495, 524 (2006). 9 MCL 600.223; see Const 1963, art 6, 5 ( The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state.). 10 See minutes 13:00 to 13:07 of the October 8, 2009, public administrative conference, available at <http://www.michbar.org/courts/virtualcourt.cfm> (accessed February 4, 2010).

provisions of substantive law. 11 This is not within our power as judges. Accordingly, I would not consider the relative lack of haste with which the Legislature acts as some sort of mandate for this Court to intervene and promulgate these amendments. If the Legislature adopts statutory provisions contrary to these amendments in the future, that statute should govern over these amended court rules. 12 Immediately after the Court voted to adopt these amendments by a 4-3 vote during our December 10, 2009, administrative conference, Justice WEAVER said, I think it will be obvious to people the misinterpretations that go on with what people say. 13 I agree. To avoid even the slightest misinterpretation about my colleagues views regarding these amendments, I urge interested parties to watch the online videos on the State Bar of Michigan s website. Justices MARKMAN and YOUNG and I raised relevant and significant objections during the Court s October 8, 2009, and December 10, 2009, administrative conferences. Accordingly, I respectfully dissent from the Court s adoption of the amendments of MCR 2.112 and 2.118. YOUNG, J. (dissenting). I fully join Justice MARKMAN S dissent from the adoption of the amendments to MCR 2.112 and MCR 2.118. Today one sees the handiwork of a new majority of this Court that is apparently indifferent to the chaos it sows in achieving the results it desires. Rather than overruling Kirkaldy v Rim 14 in the normal course, the new majority s impatience has caused it to attempt to do so by amendment of a court rule. As a result, litigants will now be forced into a Catch-22 and will be unwittingly compelled to choose between following the binding precedent of Kirkaldy or the inconsistent dictates of the amended rules adopted here. 15 11 McDougall v Schanz, 461 Mich 15, 27 (1999) ( [T]his Court is not authorized to enact court rules that establish, abrogate, or modify the substantive law. ). 12 See id. at 37. 13 See minutes 16:48 to 16:53 of the December 10, 2009, public administrative conference, available at <http://www.michbar.org/courts/virtualcourt.cfm> (accessed February 4, 2010). 14 478 Mich 581 (2007). 15 As aptly noted by Justice MARKMAN, the adopted version of MCR 2.112(L)(b)(2) allows a party to file an amended affidavit of merit without the complaint being dismissed. However, Kirkaldy requires dismissal. Under the amended court rule, the suit is not dismissed because of the deficient affidavit of merit originally filed and, therefore, the adopted versions of MCR 2.112(L)(2)(b) and MCR 2.118(D) appear to permit a plaintiff to file an amended affidavit with no consideration of the time remaining in the period of limitations. This is not permitted but will undoubtedly result in many amendments being allowed beyond the statutory limitations period contrary to Kirkaldy and will lead to ancillary litigation to determine whether a live claim still exists. Chief Justice KELLY is 7

8 So I pose a simple question that the majority needs to, but cannot, answer: How should a sitting trial judge or a trial lawyer decide which affidavit of merit rules apply those set forth in this new rule or those set forth in Kirkaldy? If there is a calculus for making such a determination, the majority has not provided one. The Chief Justice claims that the amended court rules are merely permissive in nature and therefore do not run afoul of Kirkaldy, which would only apply when a court denies a request to amend a defective affidavit of merit.... However, her attempt to cloak the amendment of an affidavit of merit in the discretion of a court to do so in furtherance of justice or when a defect in the proceedings does not affect the substantial rights of the parties is not compelling. Once a period of limitations has run, a court s allowance of any amendment to an affidavit of merit is necessarily prejudicial to a defendant and will affect the substantial rights of the parties, as the defendant has the right under Kirkaldy to dismissal of the cause of action without prejudice. Justice CAVANAGH conceded at the public hearing that Kirkaldy s restrictions regarding the statute of limitations are substantive in nature and remain good law. By injecting court rules into the system that directly contradict the binding precedent of this Court, the new majority harkens back to an earlier period when this Court so muddled the law that practitioners and judges had to invent rules to guess which inconsistent, but binding, Supreme Court precedent controlled their particular case. Litigants and trial court judges will now be forced to choose between two untenable positions: ignore either the binding precedent of Kirkaldy or the dictates of the amended court rules. They will therefore be left to decide whether an amended affidavit of merit must be filed before the remaining time of the period of limitations expires. And they will be left to determine the effect of a late-filed amended affidavit of merit. apparently unconcerned about the effects of this situation on the bench and bar. The Chief Justice states that the amendments do not overrule [Kirkaldy], nor are they inconsistent with the statute of limitations. Her first assertion is incorrect and her second is debatable. The Chief Justice simply fails to acknowledge the language in Kirkaldy that directly contradicts her assertion and the fact that the amended court rules and Kirkaldy require different outcomes when a party files a nonconforming affidavit of merit.

9 These rules provide yet another example of the new majority s consistent failure to enforce legislative tort reform measures. 16 The intentional creation of such a patent conflict, with its attendant confusion and uncertainty, is the antithesis of our rulemaking power and is inconsistent with the proper functioning of a serious senior court. MARKMAN, J. (dissenting). I dissent from the majority s adoption of the instant amendments to Michigan Court Rules 2.112 and 2.118. First, I believe that these amendments are inconsistent with this Court s decision in Kirkaldy v Rim, 478 Mich 581 (2007), and that it is ill-advised as a general matter for this Court to reverse its own precedents by altering court rules. These amendments have received no adversarial briefing and no adversarial argument of the sort that normally accompanies this Court s reversing its own precedents. At the December 10, 2009 administrative conference, in response to Justice YOUNG S statement that these amendments are inconsistent with Kirkaldy, Justice WEAVER stated the following: [T]his is simply your interpretation.... [J]ust saying that things are this, that, or the other doesn t make it so. Fair enough, and thus I would urge those who are interested in forming their own opinions to read both Kirkaldy and the amended court rules and compare their consistency. 16 See Potter v McLeary, 484 Mich 397, 431 (2009) (YOUNG, J., concurring in part and dissenting in part) ( [I]t is swiftly becoming increasingly acceptable for this Court to avoid attempting a precise or meaningful statutory analysis in favor of imprecise vagaries and broad pronouncements. ); Bush v Shabahang, 484 Mich 156, 207-208 (2009) (MARKMAN, J., dissenting) ( [The majority opinion] creates a new standard for determining a notice s sufficiency that bears no relationship to the actual requirements set forth by the Legislature....); Thorn v Mercy Mem Hosp, 483 Mich 1122 (2009) (YOUNG, J., dissenting) ( [A] majority of this Court has declined to review [whether household services of a decedent are noneconomic damages limited by MCL 600.1483]. ); Vanslembrouck v Halperin, 483 Mich 965, 970 (2009) (CORRIGAN, J., dissenting) (in which the majority denied leave to appeal an erroneous lower court decision applying statute of limitations tolling to a saving provision despite the Legislature[ s] clearly distinguish[ing] saving provisions from statutes of limitations); Romain v Frankenmuth Mut Ins Co, 483 Mich 18, 22 (2009) (YOUNG, J., dissenting) ( [T]he majority opinion conflates the common-law concept of proximate causation with the common-law concept of negligence, a result not contemplated by the plain language of the comparative fault statutes. ).

10 In Kirkaldy, 478 Mich at 586, this Court held that if an affidavit of merit is successfully challenged, the proper remedy is dismissal without prejudice. However, MCR 2.112(L)(2)(b), as amended, provides that [a]n affidavit of merit or meritorious defense may be amended.... Thus, although in Kirkaldy this Court held that dismissal without prejudice is the proper remedy for the filing of a defective affidavit, MCR 2.112(L)(2)(b) now provides that an opportunity to file an amended affidavit is the proper remedy. In addition, in Kirkaldy, 478 Mich at 586, this Court held that if the court determines that the plaintiff s affidavit of merit is defective, plaintiff would then have whatever time remains in the period of limitations within which to file a complaint accompanied by a conforming affidavit of merit. However, MCR 2.118(D), as amended, provides that an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing of the affidavit. Thus, although in Kirkaldy this Court held that an amended affidavit of merit had to be filed before the period of limitations expired, MCR 2.118(D) now provides that the amended affidavit relates back to the date of the original filing of the affidavit. 17 Under MCR 2.118(D), as amended, it is now unclear whether there is any time limitation on the filing of an amended affidavit of merit. Can a plaintiff file an amended affidavit of merit even after the period of limitations has expired (or at least would have expired if the case had been dismissed as is required by Kirkaldy)? What about the affidavit of meritorious defense? Does a defendant also have an unlimited amount of time in which to file an amended affidavit of meritorious defense? Do the parties even have to file amended affidavits, or can the court simply disregard any defects in the affidavits? MCR 2.112(L)(2)(b), as amended, states that an affidavit may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301. MCR 2.118(A)(1) states that [a] party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party.... However, MCR 2.118(A)(2) states that a party may amend a pleading... by leave of the court and that [l]eave shall be freely given when justice so requires. And MCL 600.2301 states that [t]he court... has [the] power to amend any... pleading... for the furtherance of justice, on such terms as are just and [t]he court... shall disregard any error or defect in the proceedings which do not affect the substantial rights of the 17 Although Chief Justice KELLY asserts that the instant amendments do not overrule Kirkaldy, she does not even make an attempt to explain how these amendments are consistent with that case. Indeed, by asserting that the amendments reflect a balance between the remedy of dismissal without prejudice under Kirkaldy and leave to amend with relation back of amended affidavits of merit and that Kirkaldy provides the appropriate course of action only [i]f a court denies a request to amend a defective affidavit of merit, she necessarily acknowledges that the amendments are inconsistent with Kirkaldy.

11 parties. It is unclear to me exactly how the majority intends to interpret these provisions in conjunction with one another, but given the majority s interpretation of MCL 600.2301 in conjunction with the statutory provisions applicable to notices of intent in Bush v Shabahang, 484 Mich 156 (2009), and the statement of Justice HATHAWAY (the author of Bush) at the October 8, 2009 administrative conference that this is the same remedy that we addressed in Bush as it pertains to notices of intent and there is no reason to treat the two differently, to say that I am concerned that the affidavit requirement established by our Legislature will be rendered essentially meaningless is an understatement. Although I opposed these revisions to our court rules, in an attempt to limit the destruction of Kirkaldy and the statute of limitations enacted by our Legislature, I did offer the following amendment to MCR 2.118(D) at the October 8, 2009 public administrative conference that was rejected by a 4-3 vote: In a medical malpractice action, an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing of the affidavit as long as the amended affidavit was filed before the applicable statute of limitations expired. In addition, an amendment of an affidavit of meritorious defense relates back to the date of the original filing of the affidavit as long as the amended affidavit was filed within 60 days of the successful challenge. [Differences from version adopted today shown by strikethrough and underlining.] Justice HATHAWAY stated that she opposed my amendment because it would defeat the purpose of the relation-back doctrine because the entire purpose of the relation-back doctrine is to remove the statute of limitations issue. Indeed, when asked by Justice CORRIGAN whether she believes that these court rule amendments will wipe out statute of limitations defenses, Justice HATHAWAY replied in the affirmative. Unlike Justice HATHAWAY, Chief Justice KELLY and Justice CAVANAGH stated at the administrative conferences that they do not believe that the instant court rule amendments will affect the statute of limitations. Indeed, in her concurring statement, Chief Justice KELLY states that the period of limitations for medical malpractice claims remains unchanged. 18 Unfortunately, I am inclined to agree with Justice HATHAWAY. 18 However, even Chief Justice KELLY admits, in her concurring statement that, although the period of limitations for medical malpractice actions remains the same[,]... the application of that limitations period... may change in certain circumstances. While she downplays the significance of this by referring to it as merely the application of that limitations period, what is the point of a 2-year limitations period if by its application it can be extended to a 5-year, 10-year, or even a 20-year limitations period? At which point does the majority recognize that it has simply read limitations out of limitations period?

12 The period of limitations in a medical malpractice action is two years. MCL 600.5805(6). MCL 600.5856(a) provides that the filing of a complaint tolls the period of limitations, and MCL 600.2912d(1) requires a medical malpractice plaintiff to file an affidavit of merit with the complaint. In Scarsella v Pollak, 461 Mich 547 (2000), this Court held that the filing of a complaint without an affidavit of merit does not toll the period of limitations. In Saffian v Simmons, 477 Mich 8, 13 (2007), this Court held that the filing of a complaint with a defective affidavit of merit does toll the period of limitations, at least until the validity of the affidavit has been successfully challenged. And in Kirkaldy, 478 Mich at 586, this Court held that when a plaintiff files a complaint with a defective affidavit, the plaintiff s complaint should be dismissed without prejudice and the plaintiff must file a complaint with a conforming affidavit of merit before the period of limitations expires. Under the newly amended court rules, however, I am very much concerned that a plaintiff will be allowed to file a defective affidavit, and then be allowed to file an amended affidavit and this amended affidavit will be allowed to be filed at any time because it will relate[] back to the date of the original filing of the affidavit. That is, I am concerned that a plaintiff will be able to file a complaint with a defective affidavit of merit and then wait indefinitely to file an amended conforming affidavit, rendering the two-year period of limitations essentially meaningless. Chief Justice KELLY does not share this concern because [d]efendants will still be on notice of the claims against them within the requisite time period and will be fully aware of the conduct, transaction, or occurrence at issue as set forth in the original pleadings. However, she misses the point. The Legislature has nowhere provided that a plaintiff is only required to notify the defendants of the claims against them within the requisite time period. Quite to the contrary, the Legislature has required that a plaintiff must file an affidavit of merit that contains specified statements within the requisite time period. Nevertheless, I do look forward to the responses of those justices who supported these amended court rules when a litigant, as is inevitable, seeks to take at face value their assertions that the new rules are not intended to have any impact on the medical malpractice statute of limitations. Second, not only are the new rules inconsistent with Kirkaldy, and not only is it ill-advised for this Court here to adopt rules that are inconsistent with its own precedents, but such rules may well be unconstitutional by failing to respect the command in article 6, 5 of Michigan s constitution that court rules must confine themselves to matters of procedure, not substance. See McDougall v Schanz, 461 Mich 15 (1999). The thrust of these amendments certainly seems to be to effectively modify statutes of limitations in medical malpractice cases, a matter that this Court itself has previously determined constitutes substantive law and is properly the responsibility of the Legislature. See, for example, Gladych v New Family Homes, Inc, 468 Mich 594, 600-601 (2003) ( Statutes regarding periods of limitations are substantive in nature and to the extent [MCL 600.5856] enacts additional requirements regarding the tolling of the statute of limitations, the statute would supersede the court rule. ).

13 In short, this Court lacks the constitutional authority to modify statutes of limitations. And, in fact, the Legislature is cognizant of its own authority in this realm, and its members have actively participated in an ongoing debate concerning this and related matters. That they have not affirmatively enacted changes in the law is not, as Justice HATHAWAY suggested at the October 8, 2009 administrative conference, a justification for this Court now acting on its own. Not only does a legislative body act when it rejects legislation as much as when it enacts legislation, but this Court simply lacks the authority to legislate on this subject matter regardless of whether we approve or disapprove of the law and whether the Legislature has or has not acted to correct what some justices may view as imperfections in that law. I am also concerned that the amendments to MCR 2.112 and MCR 2.118 will further erode the medical malpractice reforms that have been adopted by our Legislature and that have previously been subject to interpretation only in opinions of this Court. The amended rules are of a kind with this Court s recent decisions in Bush and Potter v McLeary, 484 Mich 397 (2009)-- which at least had the virtue of being opinions of this Court-- in that each plainly dismantles medical malpractice reforms that have been adopted by the people through their elected representatives in the Legislature. The amended rules will, I believe, further undermine reforms that were viewed as necessary by those whom our Constitution empowered to make such decisions. Piece by piece, these reforms are being dismantled by those on this Court whom the Constitution did not empower to make such decisions. CORRIGAN and YOUNG, JJ., concur with MARKMAN, J. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. February 16, 2010 Clerk