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. -3-

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