CATHERINE JOHNSON V BOTSFORD GENERAL HOSPAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
CATHERINE JOHNSON, as Personal
Representative of the Estate of RICK ALAN
March 11, 2008
Oakland Circuit Court
LC No. 2004-055682-NH
BOTSFORD GENERAL HOSPITAL,
Advance Sheets Version
G. SCOTT JENNINGS, IV, D.O., and SCOTT
JENNINGS, IV, D.O., P.C.,
Before: Zahra, P.J., and White and O'Connell, JJ.
WHITE, J. (concurring in part and dissenting in part).
I agree that the circuit court properly dismissed ¶ 21(o), (p), (q), and (u) of plaintiff's
amended complaint. I conclude that ¶ 21(n) was improperly dismissed, and in that regard
Plaintiff's complaint and amended complaint alleged medical malpractice against former
codefendants Dr. G. Scott Jennings, IV, and his professional corporation, as well as vicarious
liability and active negligence against Botsford General Hospital. After plaintiff's vicarious
liability claims were dismissed by stipulation, but while Dr. Jennings remained a party
defendant, the hospital (hereafter defendant) filed various motions for summary disposition.
Plaintiff challenges the dismissal of the following allegations:
21. That, Defendants, and each of them, by and through their duly
authorized agents, servants and/or employees in disregard of their duties and
obligations owed to Plaintiff . . . and to Plaintiff's decedent . . . and at variance
with the prevailing standards, were guilty of negligence and malpractice in the
n. Negligently and improperly discharging Plaintiff's decedent from
Defendant hospital on November 3, 2002, all of which could and should have
o. Negligent and improper action on the part of Defendant hospital's
administration, employees, agents, and/or servants by intervening in Plaintiff's
decedent's clinical care by discharging him from Defendant hospital for insurance,
financial reasons, all of which could and should have been avoided;
p. Corporate negligence and malpractice on the part of Defendant
hospital, through their [sic] administration, employees, agents and/or servants, for
intervening in the decision to discharge Plaintiff's decedent on November 3, 2002,
all of which could and should have been avoided;
q. Failing and neglecting to offer Plaintiff's decedent the option to remain
hospitalized during the admission at Defendant hospital on November 3, 2002 and
to personally pay the medical/hospital expenses, all of which could and should
have been accomplished;
Negligent and improper misrepresentation by Defendants that
Plaintiff's decedent's hospital and medical expenses would not be covered by
The allegations in ¶ 21(o), (p), (q), and (u) were dismissed on defendant's first motion for
summary disposition. With regard to these allegations, defendant correctly argues that plaintiff
failed to raise the argument that these claims sounded in ordinary negligence in response to
defendant's first motion, at the hearing on the motion, or at the hearing on defendant's motion for
clarification. I thus agree that these allegations were properly dismissed.
Plaintiff also challenges the dismissal of ¶ 21(n), which occurred on defendant's second
motion for summary disposition. Defendant's first motion for summary disposition did not seek
dismissal of ¶ 21(n).
Defendant brought its second motion under MCR 2.116(C)(4), (7), (8), and (10). The
circuit court dismissed ¶ 21(n), noting:
This is an action for medical malpractice. The plaintiff's theory is that the
defendants were negligent in coercing the plaintiff's decedent into accepting a
discharge from the hospital when he had a life threatening condition. At oral
Plaintiff later clarified that the decedent's discharge occurred on November 4, 2002.
argument on these motions, the parties disclosed that the defendant doctor and his
corporation have settled. That settlement has since been placed on the record.
The plaintiff indicated that the remaining claim was a claim against the hospital
for ordinary negligence relating to its discharge procedures.
This Court has ruled previously and stated repeatedly that there is only one
claim remaining in this case, a claim for medical malpractice for discharging the
decedent when he had a life threatening condition. The Court agrees with the
defendants that the decision to discharge a patient is a medical decision, and that
negligence relating to that decision must be brought as a medical malpractice
claim. If a claim for ordinary negligence ever was pled against the hospital, it did
not survive the prior motion for summary disposition, which limited the claims to
the claim for malpractice set forth in paragraph 21(n) of the complaint.
Accordingly, given the settlement with the doctor and the plaintiff's
admissions as to the nature of the claim it [sic] is seeking to pursue against the
hospital, this case is dismissed. There are no claims remaining to be decided in
light of these developments and the Court's prior rulings.
The court did not specify under which subrule it dismissed ¶ 21(n), but its opinion makes
clear that the principal basis was its conclusion that plaintiff's claim sounded in medical
malpractice, not ordinary negligence. The court also concluded that plaintiff failed to plead
ordinary negligence, and that, even if plaintiff had pleaded ordinary negligence, such a claim
would not have survived defendant's first motion for summary disposition.
In deciding a motion under MCR 2.116(C)(8) a court considers the pleadings alone.
Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999). "All well-pleaded factual
allegations are accepted as true and construed in a light most favorable to the nonmovant." Id. at
119. "A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are 'so
clearly unenforceable as a matter of law that no factual development could possibly justify
recovery.'" Maiden, supra at 119, quoting Wade v Dep't of Corrections, 439 Mich 158, 163; 483
NW2d 26 (1992).
I disagree with the circuit court's conclusion that plaintiff failed to plead ordinary
negligence. Plaintiff's ¶ 21 expressly states that defendants were negligent and committed
malpractice. A plaintiff is permitted to plead in the alternative. MCR 2.111(A)(2),2 see, e.g., H
MCR 2.111(A)(2) provides, in pertinent part:
Inconsistent claims or defenses are not objectionable. A party may
(b) state as many separate claims . . . as the party has, regardless of
consistency and whether they are based on legal or equitable grounds or on both.
J Tucker & Assoc, Inc v Allied Chucker & Engineering Co, 234 Mich App 550, 573; 595 NW2d
176 (1999) (a plaintiff is entitled to bring alternative counts of breach of contract and implied
contract). Further, as our Supreme Court noted in Bryant v Oakpointe Villa Nursing Ctr, Inc,
471 Mich 411, 432; 684 NW2d 864 (2000), "[t]he distinction between actions sounding in
medical malpractice and those sounding in ordinary negligence is one that has troubled the bench
and bar in Michigan, even in the wake of our opinion in Dorris [v Detroit Osteopathic Hosp
Corp, 460 Mich 26; 594 NW2d 455 (1999)]."
I conclude that viewing the pleadings alone, the circuit court read ¶ 21(n) too narrowly.
Paragraph 21(n) asserts the claim that the decedent's discharge from the hospital was a
consequence of ordinary negligence as much as it asserts a claim that this discharge resulted
from medical malpractice.
The circuit court also concluded that even if plaintiff had pleaded ordinary negligence in
¶ 21(n), such a claim did not survive defendant's first motion for summary disposition. I
disagree. Defendant's initial motion for summary disposition and the circuit court's ruling
thereon were premised on defendant's argument that plaintiff had not set forth her allegations in
the notice of intent to bring the action (NOI). The NOI requirement is specific to medical
malpractice claims, and has no application to ordinary negligence. See MCL 600.2912b.3
Further, as already noted, the initial motion did not seek dismissal of ¶ 21(n) on any basis. Thus,
I see no basis for the circuit court's conclusion that assuming that plaintiff pleaded ordinary
negligence in ¶ 21(n), that claim did not survive defendant's initial motion for summary
The majority accepts defendant's argument that plaintiff waived the argument of ordinary
negligence by failing to raise it in response to defendant's first motion for summary disposition,
and states that plaintiff "stipulated" that this was a medical-malpractice case. Neither argument
has merit with regard to ¶ 21(n), in my opinion. Defendant's first motion for summary
disposition and brief in support of the motion referred to plaintiff's claims as negligence,
corporate negligence, and malpractice claims. Defendant entitled its first motion "Motion for
Partial Summary Disposition as to Plaintiff's Claims of Negligence/Malpractice for Failure to
Give Proper Presuit Notice and Failure to File a Supporting Affidavit of Merit Brief in Support
of Motion" and argued that "Plaintiff alleges active claims of negligence/malpractice" against
defendant, that "[t]his motion seeks to dismiss any claims of active negligence and/or
malpractice against Botsford General Hospital," and that "[i]n paragraph 21 of Plaintiff's
amended complaint, Plaintiff alleges corporate negligence . . . ."
MCL 600.2912b(1) provides:
Except as otherwise provided in this section , a person shall not commence
an action alleging medical malpractice against a health professional or health
facility unless the person has given the health professional or health facility
written notice under this section not less than 182 days before the action is
commenced. [Emphasis added.]
Further, plaintiff's brief in response to defendant's first motion argued, in pertinent part:
Plaintiff concedes that the only claim Plaintiff is presently pursuing
against Defendant Hospital is one premised on Defendant's failure to take steps to
allow Plaintiff's decedent to remain hospitalized when the surgery scheduled to be
performed at the hospital was postponed. . . .
Plaintiff's claim against Defendant Hospital boils down to the
administrative failure to ascertain the true state of the insurance coverage
available to Plaintiff's decedent, which resulted in the decision to discharge
decedent being compromised by misinformation concerning this ability to meet
the financial burdens of extending his hospitalization. . . . Dr. Jennings made the
decision to discharge the patient laboring under a mistaken belief that had he
ordered his patient to remain hospitalized to deal with the low platelets, there
would have been no insurance coverage and it would have cost decedent
"thousands of dollars" each day he was in the hospital.
As shown above, decedent and his family made specific inquiries as to
why decedent had to be discharged from the hospital and were led to believe that
decedent's insurance would not cover an extended stay and that it would be futile
to ask the insurance company to approve a continuing stay. But the person whose
responsibility it was at the hospital to actually check into these matter[s] on behalf
of the patient, Nurse Van Camp, contented herself with denying to the family that
there would be coverage while negligently failing to actually check into the
matter. . . . Had she checked, she would have found that there was coverage if Dr.
Jennings wanted to keep decedent where he was, and the outcome could have
been different. She did not check. [Emphasis added.]
Plaintiff's response brief's description of the claim as a claim of administrative failure based on
the failure of Joanne Van Camp, R.N., to ascertain whether there was coverage available for the
decedent to remain in the hospital may be read as a claim of ordinary negligence. Plaintiff's
counsel also argued at the hearing on defendant's motion that this was a claim of ordinary
negligence. I thus conclude that plaintiff did not waive the issue whether ¶ 21(n) sounded in
Remaining is the circuit court's conclusion that ¶ 21(n) sounded in medical malpractice,
and that because plaintiff did not have a nursing expert to testify, the claim was properly
dismissed. "In determining whether the nature of a claim is ordinary negligence or medical
malpractice . . . a court does so under MCR 2.116(C)(7)." Bryant, supra at 419. On a motion
brought under MCR 2.116(C)(7), all well-pleaded allegations are accepted as true, unless
specifically contradicted by affidavits or other documentary evidence, and construed most
favorably to the nonmovant. Bryant, supra at 419, see also Maiden, supra at 119, citing
Patterson v Kleiman, 447 Mich 429, 434 n 6; 526 NW2d 879 (1994).
Bryant, cited by both parties, sets forth the test to determine whether a claim sounds in
ordinary negligence or medical malpractice. The plaintiff's decedent in Bryant died of positional
asphyxiation while a patient at the defendant licensed health-care facility. Bryant, supra at 414.
The Bryant Court discussed the plaintiff's complaint and the two-pronged test for determining
whether claims sound in medical malpractice or ordinary negligence:
We now turn to the complaint in the present case. Plaintiff alleges that
defendant is liable for: (1) negligently failing to assure that plaintiff's decedent
was provided with an accident-free environment; (2) negligently failing to inspect
the bed, bed frame, and mattress to assure the plaintiff's decedent was not at risk
of suffocation; (3) negligently failing to properly train its CENAs [Certified
Evaluated Nursing Assistants] regarding the risk to decedent of positional
asphyxiation posed by the bed rails; and (4) negligently failing to take steps to
protect decedent from further harm or injury after discovering her entangled
between her bed rail and mattress on March 1. We address the application of
Dorris to each of these claims below.
A. PROFESSIONAL RELATIONSHIP
The first question in determining whether . . . claims sound in ordinary
negligence or medical malpractice is whether there was a professional relationship
between the allegedly negligent party and the injured party. This analysis is fairly
straightforward and, in this case, is identical for each of plaintiff's claims.
Because defendant, Oakpointe Villa Nursing Centre, Inc., a licensed health care
facility, was under a contractual duty requiring both it and its employees to render
professional health care services to plaintiff's decedent, a professional relationship
existed to support a claim for medical malpractice.
B. MEDICAL JUDGMENT VS. LAY KNOWLEDGE
The second question is whether the acts of negligence alleged "raise issues
that are within the common knowledge and experience of the jury or,
alternatively, raise questions involving medical judgment." [Id. at 424-425, citing
Dorris, supra at 46.]
"If both these questions are answered in the affirmative, the action is subject to the procedural
and substantive requirements that govern medical malpractice actions." Bryant, supra at 422
The Bryant Court concluded that one of the plaintiff's claims—that the defendant
negligently and recklessly failed to take steps to protect the plaintiff's decedent when she was
discovered entangled between the bed rails and the mattress the day before she was
asphyxiated—sounded in ordinary negligence, noting:
We turn, finally, to a claim fundamentally unlike those discussed
previously. Plaintiff alleges that defendant "[n]egligently and recklessly fail[ed]
to take steps to protect plaintiff's decedent when she was, in fact, discovered on
March 1  entangled between the bed rails and the mattress."
This claim refers to an incident on March 1, 1997—the day before Ms.
Hunt was asphyxiated—when two of defendant's CENAs [Certified Evaluated
Nursing Assistants] found Ms. Hunt tangled in her bedding and dangerously close
to asphyxiating herself in the bed rails. According to the CENAs, they moved
Ms. Hunt away from the rail and informed their supervising nurses that Ms. Hunt
was at risk of asphyxiation.
Plaintiff now contends, therefore, that defendant had notice of the risk of
asphyxiation through the knowledge of its agents and, despite this knowledge of
the problem, defendant did nothing to rectify it. It bears repeating that plaintiff's
allegation in this claim is not that defendant took inappropriate steps in dealing
with the patient's compulsive sliding problem or that defendant's agents were
negligent in creating the hazard in the first place. Instead, plaintiff claims that
defendant knew of the hazard that led to her death and did nothing about it.
This claim sounds in ordinary negligence. No expert testimony is
necessary to determine whether defendant's employees should have taken some
sort of corrective action to prevent future harm after learning of the hazard. The
fact-finder can rely on common knowledge and experience in determining
whether defendant ought to have made an attempt to reduce a known risk of
imminent harm to one of its charges.
. . . Professional judgment might be implicated if plaintiff alleged that
defendant responded inadequately, but, given the substance of plaintiff's
allegation in this case, the fact-finder need only determine whether any corrective
action to reduce the risk of recurrence was taken after defendant's agents noticed
that Ms. Hunt was in peril. Thus, plaintiff has stated a claim of ordinary
negligence under the standards articulated in Dorris. [Id. at 430-432 (emphasis in
There is no dispute that a professional relationship existed to support a claim for medical
malpractice. Id. at 425.
Regarding the second prong of the test discussed in Bryant—"whether the claim raises
questions of medical judgment beyond the realm of common knowledge and experience,"
Bryant, supra at 422, plaintiff contends that common knowledge and experience inform that it is
careless to misguide patients concerning their insurance coverage. Plaintiff notes that her claim
focuses on the decision to discharge the decedent to go home rather than keep him in the hospital
to build up his platelet count in order to reschedule the aortic aneurysm surgery as soon as his
platelet count was satisfactory. Plaintiff contends that the decision to discharge the decedent was
improperly influenced by economic considerations, specifically by representations made by
Joanne Van Camp, R.N., defendant's employee.
Regarding the events preceding the decedent's leaving the hospital, the majority engages
in extensive fact-finding, which, in my opinion, is inappropriate given that this is an appeal
challenging a summary disposition determination. The majority additionally engages in an
extensive discussion of the issues of duty and proximate cause, in the context of that fact-finding,
although the issues presented by both parties focused only on the questions whether the claim at
issue sounds in ordinary negligence or malpractice and whether plaintiff adequately supported
her claim with a qualified expert.
I conclude that a jury could evaluate without assistance the question whether hospital
personnel called on to inform a patient regarding insurance coverage, under the circumstances
presented in this case, should convey only verified information. A jury could also evaluate
without assistance whether the decision to discharge the decedent was influenced by Van Camp's
saying to the decedent and his family, among other things, that "[t]hey [the insurance company]
are going to say to us, we aren't going to pay for this," and "[w]e [Botsford Hospital] are going to
be lucky if we can get today covered because nothing was done." Plaintiff's claim is that Van
Camp's errant advice regarding insurance coverage influenced Dr. Jennings's decision to
discharge. I conclude that a jury could evaluate that question without expert testimony and, thus,
that the circuit court improperly dismissed ¶ 21(n) as sounding in medical malpractice.
I would reverse the dismissal of ¶ 21(n) and remand for further proceedings.
/s/ Helene N. White