RIOLA J BILLOPS V ST ANNE'S CONVALESCENT CENTER
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STATE OF MICHIGAN
COURT OF APPEALS
RIOLA J. BILLOPS, Personal Representative of
the Estate of THEODORE GILBERT, Deceased,
UNPUBLISHED
March 9, 2004
Plaintiff-Appellant,
v
ST. ANNE’S CONVALESCENT CENTER, d/b/a
SHANTA CORPORATION,
No. 243397
Wayne Circuit Court
LC No. 01-130456-NO
Defendant-Appellee.
Before: Hoekstra, P.J., and Sawyer and Gage, JJ.
GAGE, J. (concurring in part and dissenting in part).
The majority concludes that only some of plaintiff’s claims sound in medical malpractice
while the remainder of plaintiff’s claims sound in ordinary negligence. Because I conclude that
all of plaintiff’s claims sound in medical malpractice, I respectfully dissent from the majority
opinion in so far as it reverses part of the trial court’s order granting summary disposition.
The key to a medical malpractice claim is whether it alleges that the negligence occurred
within the course of a professional relationship. Dorris v Detroit Osteopathic Hosp Corp, 460
Mich 26, 45; 594 NW2d 455 (1999), quoting Bronson v Sisters of Mercy Health Corp, 175 Mich
App 647; 438 NW2d 276 (1989). Whether a claim will be held to the standards of proof and
procedural requirements of a medical malpractice claim as opposed to an ordinary negligence
claim depends on whether the facts allegedly “raise issues that are within the common
knowledge and experience of the jury, or alternatively, raise questions involving medical
judgment.” Dorris, supra at 46.
The majority concludes that the following allegations in plaintiff’s complaint may be
allegations of ordinary negligence as opposed to medical malpractice:
a.
Failure to properly train individuals responsible for transfers,
bathing, dressing and other activities of plaintiff to provide adequate handling of
plaintiff to prevent injury;
f.
. . . failed to properly clean and change her after she soiled herself;
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j.
Failure to comply with the requirements of various Michigan
statutes, including, but no limited to: MCLA 333.21713; MCLA 333.21715;
MCLA 333.21720a; MCLA 333.21711; and MCLA 33.21784 [sic]; and
k.
Failure to comply with federal statutes, including, but not limited
to Part 482 of Title 42 (42 CFR 483).
l.
Any and all other acts of negligence which become apparent
through the course of discovery;
m.
Any and all other acts of negligence found appropriate by the trier
of fact.
I disagree that these allegations sound in ordinary negligence. According to the majority
opinion, the “failure to adequately and competently attend to plaintiff in such a manner as to
prevent bed/pressure sores from occurring on and about her body” and the “failure to adequately
and competently provide proper hygiene for plaintiff on a regular basis” are allegations sounding
in medical malpractice, but the failure to properly train its staff to provide proper handling of the
decedent and the failure to properly clean and change the decedent are matters of ordinary
negligence. These findings appear to me to be contradictory.1 Because I find all of plaintiff’s
allegations to sound in medical malpractice, I would affirm in all respects the trial court’s grant
of summary disposition to defendant.
At the outset, I note that paragraph 12 of plaintiff’s complaint states that by accepting the
decedent as a resident and patient in its nursing facility, “defendant undertook a duty to
adequately and competently provide proper attention for all of her medical and personal needs.”
Paragraph 13 states “Defendant nursing home breached its duty with to [sic] respect providing
adequate and competent attention to plaintiff’s decedent’s medical and personal needs . . .”
Accordingly, all plaintiff’s allegations stem from the professional relationship between the
parties and defendant’s provision of medical care and attention to the decedent. Even though
plaintiff argues that all of the allegations allege ordinary negligence because plaintiff uses the
term “negligence,” plaintiff’s allegations actually allege medical malpractice and should be
analyzed as such.
Allegation “a” alleges that defendant failed to properly train its staff to provide adequate
handling of the decedent to prevent injury. As the majority points out, plaintiff essentially
alleges that due to defendant’s “acts of negligence,” the decedent developed pressure sores on
1
Providing proper hygiene would consist of properly cleaning and changing the patient. Thus, it
is contradictory to say that the failure to provide proper hygiene is malpractice but the failure to
properly clean and change the patient is not malpractice when it relates to the patient getting
bedsores and subsequent infection. Further, while it may seem common sense that a person must
be cleaned after she soils herself, as stated later in this dissent, if the person is more susceptible
to infection, the proper method of cleaning her so as to prevent future infection requires medical
judgment.
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her body that became infected and led to the decedent’s death. Plaintiff claims that the
allegations involve adequate custodial care and do not impugn the exercise of medical judgment.
However, I conclude that this failure to train allegation is one of medical malpractice because the
ordinary layman does not know the type of training that is required to care for a bedridden
patient. In order to prove causation, expert testimony is necessary to explain what bedsores are,
what causes the breakdown of the skin, and how infection occurs. The providing of professional
medical care and treatment by a health facility includes the adequate supervision and
maintenance of the facility’s staff. See Dorris, supra at 45, quoting Bronson, supra. Allegations
concerning staffing decisions and patient monitoring may involve questions of professional
medical management and not issues of ordinary negligence. See Doris, supra. Adequate
supervision in the instant case includes the proper training of the staff concerning the hygienic
care of the patient so as to prevent sores and infection that could lead to death. Whether
defendant properly trained its staff with regard to the proper hygienic care of a patient like the
decedent,2 and whether improper training led to the decedent’s death, requires expert testimony,
as it is an issue that involves medical judgment, and thus, is an issue of medical malpractice.
Similarly, the second part of allegation “f” involves the proper hygienic care of the
decedent after she soiled herself. The second part of “f” cannot be analyzed without considering
the first part of the allegation, which is the “failure to adequately and competently provide proper
hygiene for plaintiff on a regular basis.” The second part of “f” stems from the first part and the
two parts must be read in conjunction. The decedent was at risk of getting bedsores and she
required special care. Plaintiff argues that it is well known by nursing homes and their staffs that
in order to prevent bedsores, all of the things alleged in the complaint must be done for a patient
on a regular basis. This statement supports the conclusion that plaintiff’s claims require expert
testimony concerning professional judgment.3 In this context, this claim is not within the
common experience and knowledge of an ordinary layman. Again, because of the decedent’s
situation, the determination whether defendant provided the decedent with the proper hygienic
care and whether improper care caused the decedent’s death constitutes a matter of medical
judgment requiring expert testimony. The majority cautioned that if plaintiff expanded on this
argument to claim a failure to provide special attention, plaintiff might be venturing into the area
of medical judgment.4 I believe plaintiff has already ventured into that area.
With respect to plaintiff’s remaining allegations “j” through “m”, the majority concludes
that the allegations are simply too generalized to adequately classify. I agree that the allegations
2
This may include, how to bathe the patient, how and when to turn the patient, and whether any
medications should be applied.
3
The breakdown of the epidermis, the proper positioning of an elderly patient, the fragility of the
bones when osteoporosis is present – these are matters that are not within the general knowledge
of the ordinary layperson, but instead require expert testimony.
4
As an aside, I note that plaintiff did allege in the complaint that the decedent was susceptible to
dangerous infections and defendant breached its duty with respect to providing adequate and
competent attention to the decedent’s medical and personal needs. Thus, essentially, it can be
said that because the decedent was more susceptible to infections, she required special attention.
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are generalized, but I disagree that plaintiff should be allowed to proceed on these allegations.
These remaining claims derive from plaintiff’s other allegations, as such, they too allege medical
malpractice and must be dismissed. With regard to defendant’s alleged failure to comply with
the requirements of various state and federal statutes, these claims arise out of the professional
relationship between the parties and relate to defendant’s alleged failure to properly provide
medical care to the decedent. Thus, these allegations sound in medical malpractice. Plaintiff
cannot couch the allegations in such general terms as to claim the allegations concern mere
ordinary negligence. A plaintiff’s theory must be pleaded with specificity so as to reasonably
inform the adverse party of the nature of the claims the adverse party is called on to defend. See
MCR 2.111(B)(1). Even as generally pleaded, the allegations sound in medical malpractice.
With regard to allegations “l” and “m,” I reiterate that a plaintiff’s theory must be pleaded
with specificity. The majority gives plaintiff the opportunity to generally allege “other acts of
negligence” without specifying those acts, and directs that the trial court may limit plaintiff to
arguments that do not involve claims of medical judgment. To the extent that plaintiff’s claims
are reduced to two such allegations, plaintiff cannot be permitted to simply allege “acts of
negligence” in the complaint and then be allowed to elaborate on the claim somewhere down the
line at trial. Plaintiff must allege her theory with sufficient specificity. Because the allegations
derive from the rest, even as generally stated, they allege medical malpractice.
In this case, I conclude that all of plaintiff’s allegations sound in medical malpractice.
Accordingly, I would affirm the trial court’s grant of summary disposition to defendant.
/s/ Hilda R. Gage
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