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142914 - Hanna v Merlos

Rodney Hanna,
Richard D. Schenkel
(Appeal from Ct of Appeals
(Wayne – Drain, G.)
Dario Merlos, D.D.S.,
Noreen L. Slank


​In this dental malpractice case, plaintiff Rodney Hanna alleges that his dentist, Dr. Dario Merlos, D.D.S., improperly diagnosed and treated Hanna’s teeth in June 2006. On November 8, 2006, Hanna wrote Dr. Merlos a seven-page letter that outlined Hanna’s claims of “poor diagnosis and treatment.” At the end of the letter, Hanna summarized his injuries and stated that he expected Merlos to “take care of [his] dental expenses” and to pay him an additional $7,000, for a total of “$9,829.00 if paid immediately.” Hanna’s attorney sent a second letter to Merlos later that month. Hanna filed his lawsuit on December 13, 2007. There is no evidence that Hanna filed an affidavit of merit with his complaint, despite the requirement of MCL 600.2912d(1) that a “plaintiff in an action alleging medical malpractice . . . shall file with the complaint an affidavit of merit” signed by an expert.

Merlos filed a motion for summary disposition, asking the trial court to dismiss the case, but the trial court denied the motion, accepting Hanna’s assertion that he had filed an affidavit of merit. Merlos filed two more motions for summary disposition, arguing that the court file contained no evidence that an affidavit of merit had ever been filed. Moreover, Merlos contended, Hanna’s notice of intent did not satisfy the requirements listed in MCL 600.2912b. The trial court acknowledged that it did not appear that an affidavit of merit was filed with the complaint, but characterized the omission as a “minor kind of technicality,” and refused to dismiss the lawsuit. As for the notice of intent, the trial court noted that there was no required format, and concluded that Hanna’s first letter to Merlos covered the elements required by MCL 600.2912b, although in a “barely adequate” way.

The Court of Appeals upheld the trial court’s rulings in an unpublished per curiam opinion. The panel noted that Hanna submitted his affidavit of merit as an exhibit to a brief that he filed in the trial court, which “serendipitously” satisfied the requirement of MCL 600.2912d, because the affidavit of merit was filed before the statute of limitations expired. The Court of Appeals also agreed with the trial court that Hanna’s November 8, 2006 letter qualified as a notice of intent under MCL 600.2912b(4). Although that letter failed to precisely state the proximate cause of Hanna’s injury, the Court of Appeals explained, the defect should be disregarded in the interests of justice, consistent with the Michigan Supreme Court’s decision in Bush v Shabahang, 484 Mich 156 (2009), and MCL 600.2301. Merlos appeals.