ESTATE OF JERRI LOCKWOOD V MOBILE MEDICAL RESPONSE INC
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STATE OF MICHIGAN
COURT OF APPEALS
KURT A. LOCKWOOD, as personal
representative of the ESTATE OF JERRI
LOCKWOOD,
FOR PUBLICATION
June 7, 2011
9:00 a.m.
Plaintiff-Appellee,
v
No. 295931
Saginaw Circuit Court
LC No. 09-006260-NO
MOBILE MEDICAL RESPONSE, INC.,
Defendant-Appellant.
Before: O’CONNELL, P.J., and K. F. KELLY and RONAYNE KRAUSE, JJ.
K. F. KELLY, J.
Defendant, Mobile Medical Response, Inc., appeals by leave granted from the trial
court’s order denying its motion for summary disposition. On appeal, defendant argues that the
trial court erred in failing to grant its motion for summary disposition because plaintiff, Kurt
Lockwood, as the personal representative of the Estate of Jerri Lockwood (the decedent), filed a
medical malpractice complaint without following the procedures governing medical malpractice
claims. We agree and reverse the trial court’s order.
I. BASIC FACTS AND PROCEDURE
On September 12, 2004, the decedent was playing softball in the city of Saginaw when
she became sick and began having difficulty breathing. A call was made to 911 and defendant’s
ambulance was dispatched to the scene at 1:48 p.m. Defendant’s ambulance containing a
paramedic and an Emergency Medical Technician (EMT) was en route to the scene at 1:49 p.m.
and arrived at the scene at 1:57 p.m. Upon arrival, the paramedic and EMT found police officers
performing CPR on the decedent and discovered that the decedent was “pulseless and apneic.”
They used a defibrillator on the decedent, intubated her and transported her in the ambulance to
Covenant Hospital, leaving the scene at 2:13 p.m. and arriving at the hospital at 2:25 p.m.
Ultimately, the decedent was never revived and she died of arteriosclerotic heart disease.
More than four years later, on August 27, 2009, plaintiff filed a complaint against
defendant alleging that defendant engaged in negligence when it failed to timely respond to the
911 call and failed to timely provide transportation for the decedent to medical services. Plaintiff
contended that the decedent died as a result of defendant’s failure. Plaintiff asked the trial court
to enter a judgment on his behalf.
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Instead of filing an answer to plaintiff’s complaint, defendant’s first responsive pleading
was a motion for summary disposition, filed on October 9, 2009. Defendant moved pursuant to
MCR 2.116(C)(7) and (C)(8) arguing that plaintiff’s complaint should be dismissed with
prejudice because plaintiff’s complaint alleged medical malpractice and plaintiff failed to meet
the procedural requirements to sustain a medical malpractice action. As a result, defendant
argued that plaintiff’s claim should be dismissed with prejudice.
On November 16, 2009, plaintiff filed a response in opposition to defendant’s motion for
summary disposition. Plaintiff denied that his claim sounded in medical malpractice because his
complaint did not question the quality of medical care provided by defendant. Instead, the
complaint merely addressed the reasonableness of defendant’s response time, a question that
does not involve medical care, but is analogous to the time it takes for a fire department to
respond to a fire. Plaintiff argued he properly pleaded an ordinary negligence claim.
A hearing was held on defendant’s motion for summary disposition on December 7,
2009. Defendant argued that plaintiff’s claim sounded in medical malpractice because it related
to a professional relationship between the decedent and defendant and the claim concerned a
matter of medical judgment. Defendant contended that response time involved a question
outside the common knowledge of the jury because the standard governing response time for
EMTs was delineated in guidelines issued by the Saginaw Valley Medical Control Authority
(SVMCA) and required explanation by a medical expert. In response, plaintiff posited that there
was no case on point finding that a complaint regarding the transportation services of EMTs
sounded in medical malpractice. Plaintiff further argued that his complaint specifically excluded
any references to medical judgment. According to plaintiff, the only issue pleaded was the time
it took for defendant to respond to the call made to 911. The trial court denied defendant’s
motion for summary disposition under MCR 2.116(C)(7) and (C)(8), holding “plaintiff’s
complaint as pled sounds in ordinary negligence, and not medical malpractice.” The trial court
issued a written order reflecting its ruling on December 21, 2009.
Defendant filed an application for leave to appeal the trial court’s decision on January 8,
2010. This Court granted defendant’s application for leave on April 28, 2010. Estate of Jerri
Lockwood v Mobile Med Response, Inc, unpublished order of the Court of Appeals, entered April
28, 2010 (Docket No. 295931).
II. MEDICAL MALPRACTICE
Defendant argues that the trial court erred in denying its motion for summary disposition
by finding that plaintiff’s complaint sounded in ordinary negligence and not medical malpractice
and in failing to dismiss plaintiff’s complaint with prejudice because plaintiff did not comply
with the procedural requirements of a medical malpractice claim and the statute of limitations
had run. We agree.
A. STANDARD OF REVIEW
A motion for summary disposition is reviewed de novo, and the evidence with regard to
each issue is viewed in the light most favorable to the nonmoving party. Robertson v Blue Water
Oil Co, 268 Mich App 588, 592; 708 NW2d 749 (2005). Under MCR 2.116(C)(7), summary
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disposition should be granted if the claim is barred as a matter of law, including by a relevant
statute of limitations. Vance v Henry Ford Health Sys, 272 Mich App 426, 429; 726 NW2d 78
(2006). In reviewing a motion for summary disposition because the claim is barred, we consider
the affidavits, pleadings, and other documentary evidence presented by the parties and accept as
true the plaintiff’s well-pleaded allegations except those contradicted by documentary evidence.
Id. at 429; Davis v Detroit, 269 Mich App 376, 378; 711 NW2d 462 (2005).
A motion for summary disposition based on the failure to state a claim under MCR
2.116(C)(8) tests the legal sufficiency of the complaint on the basis of the pleadings alone. Mack
v Detroit, 467 Mich 186, 193; 649 NW2d 47 (2002). A motion should be granted under MCR
2.116(C)(8) “only if no factual development could possibly justify recovery.” Haynes v
Neshewat, 477 Mich 29, 34; 729 NW2d 488 (2007). In reviewing the decision on the motion, we
must consider only the pleadings and “accept the factual allegations in the complaint as true[.]”
Kuznar v Raksha Corp, 481 Mich 169, 176; 750 NW2d 121 (2008).
B. MEDICAL MALPRACTICE V. ORDINARY NEGLIGENCE
Defendant contends that plaintiff’s claim is by definition a medical malpractice claim and
not an ordinary negligence claim. A complaint cannot avoid the procedural requirements of a
malpractice action by framing its claim in terms of ordinary negligence. Dorris v Detroit
Osteopathic Hosp Corp, 460 Mich 26, 43; 594 NW2d 455 (1999). A medical malpractice claim
is defined as a claim which arises during the course of a professional relationship and involves a
question of medical judgment. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 422;
684 NW2d 864 (2004). A professional relationship exists when
a licensed health care professional, licensed health care facility [or agency], or the
agents or employees of a licensed health care facility [or agency], [are] subject to
a contractual duty that require[s] that professional, that facility [or agency], or the
agents or employees of that facility [or agency], to render professional health care
services to the plaintiff. [Id.; see MCL 600.5838a(1).]
A claim is one of common knowledge and not a question of medical judgment if lay jurors can
evaluate the reasonableness of the defendant’s actions using their common knowledge and
experience. Bryant, 471 Mich at 423. “If, on the other hand, the reasonableness of the action
can be evaluated by a jury only after having been presented [through expert testimony with] the
standards of care pertaining to the medical issue . . ., a medical malpractice claim is involved.”
Id.
The events at issue in plaintiff’s complaint occurred during the course of a professional
relationship. Defendant is a licensed health care agency under the public health code. MCL
333.20920; MCL 600.5838a(1)(a). The EMT and the paramedic were acting as defendant’s
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agents when they responded to the call.1 Additionally, the events at issue occurred at a time
when defendant had a contractual obligation to provide medical services to the decedent. A 911
call was made and defendant’s agents were dispatched to the scene for the purpose of providing
medical services to the decedent. Accordingly, the first prong of the test for a medical
malpractice claim, that the claim arose from a professional relationship, was met.
Furthermore, the complaint alleged a claim involving a question of medical judgment.
Plaintiff contended that defendant “held itself out as competent, capable and sufficiently
equipped and staffed to respond when dispatched to transport qualified medical personnel to an
emergency medical situation.” Plaintiff alleged in the complaint that defendant breached the
duty to timely respond to the 911 call and the breach resulted in the decedent’s “untimely
death[.]” Although plaintiff does not explicitly define the standard of care governing the duty to
timely respond, plaintiff refers to the guidelines promulgated by the SVMCA, an agency charged
by state law2 with overseeing the provision of emergency medical services in Saginaw and
Tuscola counties, and indicates that defendant violated those guidelines. A lay juror would
require the testimony of an expert to understand the SVMCA guidelines and to determine
whether defendant’s agents acted reasonably under the circumstances. Without an expert, a lay
juror would be unable to know what a timely response would be to a 911 call given the nature
and seriousness of the decedent’s medical emergency.
Plaintiff argued at the hearing on the motion for summary disposition that his claim
against defendant did not concern defendant’s medical judgment but only involved the response
time of the ambulance. He analogized his claim to challenging the time it takes a fire department
to respond to a fire. We disagree and conclude that this claim involves medical judgment. By
citing the SVMCA guidelines in the complaint, plaintiff conceded that ambulance response time
is governed by a professional standard of care and not by the ordinary person standard of care.
Moreover, whether defendant was timely in arriving at a scene depends in large part on the
nature of the medical emergency. Whether an ambulance arrives in a timely manner when the
call concerns a broken bone is a very different question from whether an ambulance is timely
when the medical emergency is a cardiac arrest. As a result, the issue in plaintiff’s complaint
was not just a matter of timing, but concerns what is timely in the context of the decedent’s
specific medical emergency. Timeliness within the context of a medical emergency would not
be easily understood and evaluated by lay jurors without expert testimony regarding the medical
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Defendant contends that the paramedic and EMT that drove the ambulance to the scene and
provided medical care to the decedent were “licensed medical providers” for purposes of medical
malpractice claims. However, for purposes of the tort reform statute, paramedics and EMTs are
not “licensed health care professionals” because they are not licensed under article 15 of the
public health code, but are licensed instead under article 17 of the public health code. MCL
600.5838a(1)(b); MCL 333.20950. Still, the paramedic and EMT were acting as agents of a
licensed health care agency, and therefore, can still be the subjects of a malpractice claim. MCL
600.5838a(1).
2
See MCL 333.20919.
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issue. As a result, plaintiff’s complaint sounds in medical malpractice and not ordinary
negligence.
C. PROCEDURAL REQUIREMENTS
Defendant further argues that because plaintiff’s complaint amounted to a medical
malpractice claim, plaintiff was required to meet the procedural requirements of filing a medical
malpractice claim including the provision of notice and the filing of an affidavit of merit.
According to defendant, plaintiff’s failure to fulfill those procedural constraints should have
resulted in dismissal of the claim. We agree.
A medical malpractice claimant must provide to proposed defendants notice of his intent
to sue at least 182 days before commencing an action. MCL 600.2912b(1); Driver v Naini, 287
Mich App 339, 345; 788 NW2d 848 (2010). A medical malpractice claim may not be asserted
against a health professional or health facility unless written notice is provided before the action
is commenced. MCL 600.2912b(1); Roberts v Mecosta Co Hosp (After Remand), 470 Mich 679,
685; 684 NW2d 711 (2004). Generally, the notice will toll the applicable statute of limitations.
Id. at 686. The sanction for the failure to give notice of intent to claim medical malpractice is
dismissal of the complaint without prejudice. Dorris, 460 Mich at 47.
In addition to the notice of intent, a plaintiff alleging medical malpractice or his attorney
must file with the complaint “an affidavit of merit signed by a health professional who the
plaintiff's attorney reasonably believes meets the requirements for an expert witness.” MCL
600.2912d(1). The affidavit of merit must certify:
[T]he health professional has reviewed the notice and all medical records supplied
to him or her by the plaintiff’s attorney concerning the allegations contained in
the notice and must contain a statement of the following:
(a) The applicable standard of practice or care.
(b) The health professional’s opinion that the applicable standard was breached by
the health professional or health facility receiving notice.
(c) The actions that should have been taken or omitted by the health professional
or health facility in order to have complied with the applicable standard of
practice or care.
(d) The manner in which the breach of the standard or practice or care was the
proximate cause of the injury alleged in the notice. [MCL 600.2912d(1).]
“When a medical malpractice complaint is filed without an affidavit of merit, the complaint is
ineffective and fails to toll the limitations period.” Vanslembrouck v Halperin, 277 Mich App
558, 561; 747 NW2d 311 (2008). Moreover, the sanction for failing to file an affidavit of merit
is dismissal without prejudice. Dorris, 460 Mich at 47.
Plaintiff failed to provide any notice of intent to sue defendant, failed to wait the statutory
period before filing his complaint against defendant, and failed to file an affidavit of merit with
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his complaint. As a result, plaintiff could not assert his medical malpractice claim and did not
toll the relevant statute of limitations, and defendant was entitled to dismissal with prejudice.
Generally in cases where the statute of limitations has not run, a plaintiff who fails to file notice
of intent to sue and/or an affidavit of merit is entitled to dismissal without prejudice and is
allowed to file a notice of intent to toll the statute of limitations and then refile a complaint with
the attached affidavit. Id. However, plaintiff was unable to refile his complaint because the
applicable statute of limitations had run. Generally, the statute of limitations for a medical
malpractice claim is two years. MCL 600.5805(6). Still, the period can be extended for the
personal representative of a decedent. MCL 600.5852. A personal representative of a decedent
must file a medical malpractice claim within two years of receiving his or her letters of authority,
but not more than three years after the original statute of limitations has run. MCL 600.5852.
The original statute of limitations ran on September 12, 2006, and more than three years passed
before defendant filed his motion for summary disposition. As a result, at the time defendant’s
motion for summary disposition was filed on October 9, 2009, plaintiff’s claim was barred as a
matter of law under MCR 2.116(C)(7) by the statute of limitations, and the trial court erred in
denying defendant’s motion for summary disposition.
Reversed. We do not retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Kirsten Frank Kelly
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