Alanna Frey V Trinity Health-Michigan (Concurring Opinion)
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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS ALANNA FREY, as Next Friend and Attorney-inFact for DAVID FREY, UNPUBLISHED December 10, 2021 Plaintiff-Appellant, v TRINITY HEALTH-MICHIGAN, doing business as SAINT JOSEPH MERCY HEALTH SYSTEM, and ST. JOSEPH MERCY ANN ARBOR, No. 359446 Washtenaw Circuit Court LC No. 21-001286-CZ Defendant-Appellee. Before: SERVITTO, P.J., and SAWYER and M. J. KELLY, JJ. M. J. KELLY, J. (concurring in part and dissenting in part). I concur in the majority’s determination that plaintiff was not denied due process by the trial court’s sua sponte order dismissing her complaint. Additionally, I concur with the majority that plaintiff has failed to meet her burden of establishing that Frey will suffer irreparable harm without the issuance of a preliminary injunction ordering the hospital to administer to him ivermectin. Because failure to meet the irreparable-harm factor is enough to defeat a claim for a preliminary injunction, see Pharmaceutical Research & Mfrs of America v Dep’t of Community Health, 254 Mich App 397, 403; 657 NW2d 162 (2002), I affirm the trial court’s order denying plaintiff’s motion for a preliminary injunction. The hospital submitted an affidavit from its Chief Medical Officer, David M. Vandenberg, M.D., which states in pertinent part: 6. Mr. Frey is currently suffering from severe lung injury, moderate kidney injury, and bacterial pneumonia. His current condition is not due to active COVID19 infection. Therefore, it is too late to administer medications that could be effective in the treatment of COVID-19. [Emphasis added.] -1- Plaintiff has not produced any evidence to rebut this assertion. Therefore, plaintiff is unable to show that the failure to administer ivermectin will cause irreparable harm and her motion must fail. As a result, I find it unnecessary to address the remaining factors, so I do not join the majority’s analysis of them. /s/ Michael J. Kelly -2-
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