ESTATE OF JERRI LOCKWOOD V MOBILE MEDICAL RESPONSE INC
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STATE OF MICHIGAN
COURT OF APPEALS
KURT LOCKWOOD, as personal representative
of the ESTATE OF JERRI LOCKWOOD,
FOR PUBLICATION
June 7, 2011
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.
RONAYNE KRAUSE, J. (dissenting)
I respectfully dissent. The majority in this matter has very well-founded and appropriate
concerns, both as to the ultimate merits of this case and as to the policy implications involved. I
wholeheartedly agree that the trier of fact will require expert testimony in order to understand
any judgments exercised by defendant in getting its ambulance from its assigned station to the
scene of the decedent’s collapse. But I cannot comprehend how the majority concludes that the
trier of fact will require expert medical testimony to do so.1
I agree with the majority’s recitation of the test for whether a claim sounds in medical
malpractice. There are two “defining characteristics” of medical malpractice claims: the breach
1
Plaintiff will likely need expert medical testimony to show cause-in-fact, i.e., whether the
decedent would have survived if she had received more prompt care. Medical responders were
already on the scene well before defendant’s ambulance arrived, so it is doubtful that plaintiff
could do so. But under the present procedural posture of this case, that issue is not before us, and
the gravamen of a medical malpractice claim is the need for expert medical testimony to explain
the allegedly breached standard of care, not causation. If, in fact, plaintiff attempts to introduce
medical expert testimony for anything other than causation, the trial court should not allow this
into evidence. But this matter is before us on a motion for summary disposition pursuant to
MCR 2.116(C)(8), so we are required to believe what plaintiff argued below: that there would
be no expert medical testimony because there is no need to exercise medical judgment in driving
an ambulance carefully.
-1-
occurred within a “professional relationship” and “the claim raises questions of medical
judgment beyond the realm of common knowledge and experience.” Bryant v Oakpointe Villa
Nursing Centre, 471 Mich 411, 422; 684 NW2d 864 (2004). I take no issue with the majority’s
conclusion that a professional relationship existed here. Furthermore, I agree that this claim
raises questions of some kind of “judgment beyond the realm of common knowledge and
experience.” As such, some kind of expert testimony certainly will be required.2 I cannot glean
from the pleadings or the record any support for the conclusion that this claim raises questions of
medical judgment.
In Bryant, our Supreme Court discussed whether various of the plaintiff’s claims sounded
in medical malpractice or ordinary malpractice; it found one claim completely unrecognized by
Michigan law, two claims to sound in medical malpractice, and one claim to sound in ordinary
negligence. The two medical malpractice claims were found to be such because training staff to
evaluate a patient’s risk of asphyxia and checking facilities for a risk of asphyxia required
specialized and complex knowledge of pros and cons that varied from person to person under
various circumstances. Bryant, 471 Mich at 426-430. In contrast, the claim that was found to
sound in ordinary negligence entailed the defendant receiving definite information that a specific
patient was actually at risk, whereupon the defendant literally did nothing at all about it; no
professional judgment was necessary to determine that the defendant should have done
something. Id. at 430-432.
Here, I believe that it is well within the realm of common knowledge and experience that
response time to a cardiac arrest is critical. No professional judgment of any kind is needed to
deduce that it was incumbent on defendant to get to the decedent as quickly as possible. What is
not within the realm of common knowledge and experience is whether it actually was possible
for defendant’s ambulance to get to the decedent any faster. In the real world, there are a
multitude of considerations facing the driver of an emergency vehicle. Are there, for example,
automatic traffic signal changing devices in the locality? How quickly does other traffic on the
road really yield to flashers? In the absence of expert testimony on the topic of safe and
competent operation of heavy emergency vehicles, it would invite chaos to leave the trier of fact
to speculate as to whether defendant’s drivers should have, for example, run that red light or
taken that corner faster.3
2
It would therefore be a false dichotomy to suggest that this claim must require either medical
judgment or lay knowledge.
3
Plaintiff asserts that defendant’s tardiness “also violated the protocol, guidelines, and
procedures dealing with dispatching and responding to emergency medical transportation calls,”
a reference to the Provider Agency Standards issued by the Saginaw Valley Medical Control
Authority. Such guidelines may be relevant to a determination of the applicable standard of care,
although they do not per se establish it. See Jilek v Stockson, 289 Mich App 291, 306-310, 314;
___ NW2d ___ (2010). They might require a medical expert to interpret and explain them. But
the only relevant portion of the Provider Agency Standards here is that at least 90% of responses
-2-
But those judgments facing defendant were not medical in nature.4 It would already have
been established, and indeed obvious, that defendant’s drivers needed to get to their destination
as quickly as possible. The issue is whether defendant’s drivers did get the ambulance to the
decedent as quickly as possible, and so any judgments they exercised in the process pertain to
such issues as driving skills, proper use of whatever emergency signaling or traffic control
devices the ambulance had available, and, to be sure, professional judgments as to whether an
ambulance could safely execute maneuvers under the weather or traffic conditions then facing it.
While these judgments are outside the common knowledge of jurors, they are simply not medical
in nature.
According to the majority’s reasoning, if a doctor who was on-call at a hospital chose to
purchase a four-cylinder family car instead of an eight-cylinder sportscar or sport-utility vehicle,
and was therefore not capable of getting from home to the hospital as quickly or through the
same road conditions in an emergency, the doctor’s decision to buy a particular model car would
potentially constitute medical malpractice. Likewise, an insurance company’s delay in
processing a claim, which can have serious consequences to an insured’s ability to obtain
medical care, could constitute medical malpractice. Alternatively, perhaps the majority intends
to create out of whole cloth a new legal rule that any matter involving an ambulance is per se
medical malpractice. Either way, I simply cannot agree that a decision that might have some
ultimate medical consequences necessarily constitutes an exercise of actual medical judgment.
I would affirm.
/s/ Amy Ronayne Krause
to life-threatening requests must be within 8 minutes and 59 seconds, which defendant satisfied.
I see no reason why a lay juror would require medical expert testimony to understand this
requirement or explain whether defendant acted reasonably in light of it.
4
This is, of course, not to say that a claim involving the responsiveness of an ambulance to a
reported medical emergency can never be a medical malpractice claim. For example, if
defendant had received multiple simultaneous emergency reports and had to decide the order in
which to respond by evaluating the reports’ comparative abilities to absorb a delay. Or if the
drivers were engaged in some other activity at the time of the dispatch—from purchasing coffee
to actively treating another client—and had to decide whether they had time to finish before
responding. In other words, there could certainly be situations in which an ambulance operator
will need to exercise some kind of medical judgment. But none were alleged here.
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