WALTER HOWELL V MACOMB MRI
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STATE OF MICHIGAN
COURT OF APPEALS
WALTER HOWELL,
UNPUBLISHED
October 11, 2005
Plaintiff-Appellant,
No. 260774
Macomb Circuit Court
LC No. 2003-004865-NO
v
MACOMB MRI, a/k/a ST. JOHN HEALTH
SYSTEM,
Defendant-Appellee.
Before: Fitzgerald, P.J., and Cooper and Kelly, JJ.
PER CURIAM.
Plaintiff Walter Howell appeals by delayed leave granted from the trial court’s order
dismissing his complaint for failure to comply with the procedural requirements applicable to
medical malpractice actions. As plaintiff’s claims sound in ordinary negligence rather than
medical malpractice, we reverse and remand for further proceedings.
I. Background
Plaintiff, a seventy-five year old man, was injured on May 3, 2002, when an agent of
defendant, Macomb MRI, “pushed or otherwise caused” him to roll off a table while positioning
him for an MRI examination. Plaintiff filed a notice of intent to file a medical malpractice claim
against defendant pursuant to MCL 600.2912b, and subsequently timely filed his complaint on
October 22, 2003. However, it is undisputed that plaintiff did not file an affidavit of merit with
this complaint pursuant to MCL 600.2912d. Defendant, therefore, filed a motion for summary
disposition. On March 10, 2004, the trial court denied defendant’s motion, determining that
plaintiff was not required to file an affidavit of merit as his claims sounded in ordinary
negligence.1 In July of 2004, the Michigan Supreme Court issued its decision in Bryant v
Oakpointe Villa Nursing Centre, Inc,2 clarifying the distinction between ordinary negligence and
1
In response to defendant’s motion, plaintiff requested to file an amended complaint. The trial
court’s denial of defendant’s motion rendered this request moot.
2
Bryant v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411; 684 NW2d 864 (2004).
-1-
medical malpractice. Defendant thereafter renewed its motion for summary disposition. The
trial court changed its position, ruling that plaintiff’s claims sounded in medical malpractice and
dismissing plaintiff’s complaint for failure to file an affidavit of merit on January 20, 2005.
Plaintiff was precluded from filing an amended complaint at that time as the two-year statute of
limitations had run on his claims.3
II. Ordinary Negligence vs. Medical Malpractice
We review the trial court’s determination regarding the nature of plaintiff’s claims and
the application of the statute of limitations de novo.4 The trial court improperly determined that
plaintiff’s claims sounded in medical malpractice rather than ordinary negligence.
A medical malpractice claim is distinguished by two defining
characteristics. First, medical malpractice can occur only “‘within the course of a
professional relationship.’” Second, claims of medical malpractice necessarily
“raise questions involving medical judgment.” Claims of ordinary negligence, by
contrast, “raise issues that are within the common knowledge and experience of
the [fact-finder].” Therefore, a court must ask two fundamental questions in
determining whether a claim sounds in ordinary negligence or medical
malpractice: (1) whether the claim pertains to an action that occurred within the
course of a professional relationship; and (2) whether the claim raises questions of
medical judgment beyond the realm of common knowledge and experience. If
both these questions are answered in the affirmative, the action is subject to the
procedural and substantive requirements that govern medical malpractice
actions.[5]
Plaintiff does not dispute that his injury occurred within the context of a professional
relationship. However, the reasonableness of the MRI technician’s action is within “the realm of
common knowledge and experience,” and can be evaluated by lay jurors without expert
testimony on the standard of care and the medical issues presented.6 Plaintiff’s allegations do
involve the positioning of a patient on an MRI table for testing. The reasonableness of the
technician’s actions, however, do not involve medical judgment. It takes no specialized
knowledge to evaluate whether the technician unreasonably caused plaintiff to fall from the
table, or whether the technician actually pushed plaintiff. Therefore, we find that plaintiff’s
claims sound in ordinary negligence. Accordingly, we reverse the trial court’s order dismissing
plaintiff’s complaint.
III. Equitable Tolling
3
MCL 600.5805(6).
4
Bryant, supra at 419.
5
Id. at 422 (internal citations omitted).
6
Id. at 423.
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Plaintiff contends that if his claims sounded in medical malpractice, the statute of
limitations was tolled by the trial court’s earlier ruling to the contrary. We have already
determined that these claims sound in ordinary negligence. However, assuming arguendo that
the claims do sound in medical malpractice, we would find that the trial court improperly
dismissed his complaint. The doctrine of equitable tolling should be invoked to permit plaintiff
to file an amended complaint including an affidavit of merit. The doctrine of equitable, or
judicial, tolling may be applied to toll the running of a statute of limitations in the interests of
justice.7 Equitable tolling is properly applied when a plaintiff exercised reasonable diligence in
pursuing his claims, but “is prevented in some extraordinary way from asserting his rights.”8
Arguably, plaintiff should have filed an affidavit of merit with his complaint “as a matter
of prudence.”9 However, the trial court made a ruling before the statute of limitations had run
that plaintiff’s claims sounded in ordinary negligence rather than medical malpractice. Had the
trial court made a timely determination that plaintiff’s claims sounded in medical malpractice,
plaintiff could have filed an amended complaint and an affidavit of merit within the statutory
period.10 Plaintiff justifiably relied on the trial court’s initial ruling that his action sounded in
ordinary negligence, not malpractice, thereby negating the requirement that an affidavit of merit
be filed. Accordingly, when the trial court reversed itself and found that plaintiff’s claims
sounded in medical malpractice, the statute of limitations was tolled.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Jessica R. Cooper
7
Ward v Rooney-Gandy, 265 Mich App 515, 517; 696 NW2d 64 (2005). See also Bryant, supra
at 432.
8
Ward, supra at 520.
9
Bryant, supra at 433.
10
Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 47-48; 594 NW2d 455 (1999).
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