DENISE BRYANT V OAKPOINTE VILLA NURSING CENTRE INC
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 30, 2004
DENISE BRYANT, Personal Representative
of the Estate of Catherine Hunt, Deceased,
Plaintiff-Appellee,
v
Nos. 121723, 121724
OAKPOINTE VILLA NURSING CENTRE,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
In
this
case,
representative
Catherine
of
Hunt,
plaintiff,
the
alleges
estate
that
Denise
of
Bryant,
personal
her
deceased
aunt,
defendant
Oakpointe
Villa
Nursing Centre, Inc. (Oakpointe), is liable for the death
of her aunt, who died from positional asphyxiation while in
defendant’s care.
Plaintiff has alleged that defendant was
negligent in four distinct ways: (1) by failing to provide
“an accident-free environment” for her aunt; (2) by failing
to train its Certified Evaluated Nursing Assistants (CENAs)
to
recognize
and
counter
the
risk
of
positional
asphyxiation posed by bed rails; (3) by failing to take
adequate
corrective
measures
after
finding
Ms.
Hunt
entangled
in
her
bedding
on
the
day
before
her
asphyxiation; and (4) by failing to inspect plaintiff’s bed
arrangements
to
ensure
“that
the
risk
of
positional
asphyxia did not exist for plaintiff’s decedent.”
We are
required in this appeal to determine whether each claim
sounds in medical malpractice or ordinary negligence.
Plaintiff’s “accident-free environment” claim is one
of strict liability; because medical malpractice requires
proof of negligence, this claim is not legally cognizable.
Moreover, under the standards set forth in Dorris v Detroit
Osteopathic Hosp Corp, 460 Mich 26; 594 NW2d 455 (1999),
plaintiff’s failure-to-train and failure-to-inspect claims
sound
in
medical
malpractice.
Plaintiff’s
claim
that
defendant failed to take action after its employees found
Ms. Hunt entangled in her bedding on the day before her
asphyxiation, however, sounds in ordinary negligence.
We reverse the judgment of the Court of Appeals and
remand this case to the Wayne Circuit Court for proceedings
on plaintiff’s claim of ordinary negligence and, given the
equities
in
this
case,
on
her
two
medical
malpractice
claims as well.
I.
BACKGROUND
Plaintiff’s decedent, Catherine Hunt, was a resident
2
She suffered from multi-infarct dementia1 and
of Oakpointe.
diabetes,
had
suffered
several
strokes,
and
required
twenty-four-hour-a-day care for all her needs, including
locomotion,
Hunt’s
dressing,
condition
eating,
impaired
her
toileting,
judgment
and
and
ability and, in turn, caused cerebral atrophy.
bathing.
reasoning
Hunt had no
control over her locomotive skills and was prone to sliding
about uncontrollably and, therefore, she was at risk for
suffocation by “positional asphyxia.”2
Because
Hunt
had
no
control
over
her
locomotive
skills, Dr. Donald Dreyfuss, defendant’s medical director,
1
According to Tabers Cyclopedic
(2002), “dementia” constitutes
Medical
Dictionary
progressive,
irreversible
decline
in
mental
function, marked by memory impairment and, often,
deficits
in
reasoning,
judgment,
abstract
thought, registration, comprehension, learning,
task execution, and use of language.
The
cognitive impairments diminish a person’s social,
occupational, and intellectual abilities.
“Multi-infarct dementia” constitutes
[d]ementia
resulting
from
multiple
small
strokes. . . .
The cognitive deficits of multiinfarct dementia appear suddenly, in “step-wise”
fashion.
The disease is . . . most common in
patients with hypertension, diabetes mellitus, or
other
risk
factors
for
generalized
atherosclerosis.
Brain imaging in patients with
this form of dementia shows multiple lacunar
infarctions. [Id.]
2
“Positional asphyxia refers to suffocation that
results
when
someone’s
position
prevents
them
from
breathing properly.
See <http://en.wikipedia.org/wiki/
Positional_asphyxia> (accessed July 27, 2004).
3
authorized the use of various physical restraints.
These
included bed rails to keep Hunt from sliding out of the
bed,
as
well
as
a
restraining
vest
that
kept
her
from
moving her arms, thereby impeding her ability to slide.
The authorized restraints also included wedges or bumper
pads that were placed on the outer edge of the mattress to
keep her from hurting herself by striking, or entangling
hereself in, the rails.
The use of restraints of this sort
is regulated by the state of Michigan to prevent overuse
and excessive patient confinement, and must be authorized
by a physician.3
Several persons cared for Hunt on a twenty-four-hour
basis, including registered nurses, practical nurses, and
nursing
assistants
(CENAs).
On
March
1,
1997,
nursing
assistants Monee Olds and Valerie Roundtree noticed that
Hunt was lying in her bed very close to the bed rails and
3
MCL 333.20201(2)(l) specifies, with regard to
restraints generally, that “[a] patient or resident is
entitled to be free from mental and physical abuse and from
physical and chemical restraints, except those restraints
authorized in writing by the attending physician for a
specified and limited time . . . .” Regarding bed rails in
particular, MCL 333.21734(1) provides, in relevant part:
A nursing home shall provide bed rails to a
resident only upon receipt of a signed consent
form authorizing bed rail use and a written order
from the resident's attending physician that
contains statements and determinations regarding
medical
symptoms
and
that
specifies
the
circumstances under which bed rails are to be
used.
4
was tangled in her restraining vest, gown, and bedsheets.
They untangled her from her vest and gown and attempted to
position bed wedges onto decedent’s bed to prevent her from
slipping into a gap that existed between the mattress and
bed
rail.
The
nursing
assistants
testified
that
they
informed their supervisor that the wedges were not sticking
properly and kept falling off, and that better care should
be
taken
in
that
regard
for
all
patients
or
else
the
patients could hurt or even fatally injure themselves.4
The next day, March 2, 1997, Hunt slipped between the
rails of her bed and was in large part out of the bed with
the lower half of her body on the floor but her head and
neck under the bed side rail and her neck wedged in the gap
between the rail and the mattress, thus preventing her from
breathing.
When Hunt was extricated, she was transported
to a hospital.
There was no recovery and, on March 4,
1997, she was taken off life support and died.
The cause
of her death was listed as positional asphyxia.
Plaintiff filed a suit alleging ordinary negligence
against defendant in the Wayne Circuit Court in April 1998.
In
May
1998,
defendant
moved
for
summary
disposition
pursuant to MCR 2.116(C)(4) and (C)(8), on the basis that
plaintiff’s claims sounded in medical malpractice rather
4
Whether the CENAs actually made the report, as
plaintiff notes in its brief to this Court, is in dispute.
5
than ordinary negligence.
Harwood
ruled
that
In August 1998, Judge Pamela
plaintiff’s
complaint
sounded
ordinary negligence and allowed the case to proceed.
in
In
January 1999, Judge Harwood recused herself from the case
and it was reassigned to Judge John Murphy.
In
June
1999,
plaintiff
filed
a
first
amended
complaint still alleging ordinary negligence. It contained
three counts.
These were, first, ordinary negligence “by
and
defendant’s
through”
negligent
gross
infliction
negligence
by
of
employees
generally;
emotional
distress;
defendant’s
employees
and
second,
third,
generally.
Plaintiff’s “ordinary negligence” count—the claim at issue
in
this
appeal—contained
four
distinct
claims
against
defendant:
(a) Negligently and recklessly failing to
assure that plaintiff’s decedent was provided
with an accident-free environment;
(b) Negligently and recklessly failing to
train CENAs to assess the risk of positional
asphyxia by plaintiff’s decedent despite having
received specific warnings by the United States
Food and Drug Administration about the dangers of
death caused by positional asphyxia in bed rails;
(c) Negligently and recklessly failing to
take steps to protect plaintiff’s decedent when
she was, in fact, discovered on March 1 entangled
between the bed rails and the mattress;
(d) Negligently and recklessly failing to
inspect the beds, bed frames and mattresses to
assure that the risk of positional asphyxia did
not exist for plaintiff’s decedent.
6
In
October
1999,
defendant
again
moved
for
summary
disposition on the basis that plaintiff’s new claims of
ordinary
negligence,
in
fact,
sounded
in
medical
malpractice.
Unlike Judge Harwood, Judge Murphy, in June
2000,
with
agreed
defendant
and
ruled
that
plaintiff’s
“ordinary negligence” count sounded in medical malpractice.5
In addition, he ruled that, although ordinary negligence
claims
could
be
brought
against
the
nursing
assistants
individually, these claims had not properly been pleaded.
The court therefore dismissed the complaint in its entirety
without prejudice.
Plaintiff
appealed
the
dismissal
to
the
Court
of
Appeals.
Meanwhile, however, seeking to comply with Judge
Murphy’s
decision,
plaintiff,
in
August
2000,
filed
a
notice of intent to sue in medical malpractice pursuant to
MCL
600.2912b
filing
a
malpractice.
and,
second
in
February
amended
2001,
complaint
refiled
her
alleging
case,
medical
Defendant again brought a motion to dismiss
pursuant to 2.116(C)(7), on the basis that the two-year
medical
malpractice
period
of
limitations
had
expired.
Judge Murphy, in June 2001, disagreed and held that the
period of limitations was tolled when Judge Harwood issued
5
The
trial
court
found
that
this
case
was
indistinguishable from Starr v Providence Hosp, 109 Mich
App 762; 312 NW2d 152 (1981), and Waatti v Marquette Gen
Hosp, Inc, 122 Mich App 44; 329 NW2d 526 (1982).
7
her August 1998 decision until that decision was reversed
by himself in June 2000.
Defendant appealed this decision
to the Court of Appeals.
The Court of Appeals consolidated plaintiff’s appeal
from
Judge
Murphy’s
June
2000
decision
appeal from his June 2001 decision.
with
defendant’s
The Court of Appeals
held in plaintiff’s favor, finding that the case sounded in
ordinary negligence.6
The Court recognized that, having so
held, the issue regarding the tolling of the period of
limitations was moot.
However, the Court concluded, in
dictum, that if plaintiff’s claim had sounded in medical
malpractice, Scarsella v Pollak, 461 Mich 547; 607 NW2d 711
(2000),
would
Defendant
require
appealed
plaintiff’s
case
the
its
dismissal
Court
sounded
in
of
with
Appeals
ordinary
prejudice.
decision
negligence,
that
and
we
granted leave to appeal in this case and in Lawrence v
Battle Creek Health Systems, 468 Mich 944 (2003), ordering
that the two cases be argued and submitted together.7
II. STANDARD
In
ordinary
determining
negligence
whether
or
the
medical
OF REVIEW
nature
of
malpractice,
a
as
claim
is
well
as
whether such claim is barred because of the statute of
6
Unpublished opinion per curiam, issued May 21, 2002
(Docket Nos. 228972, 234992).
7
468 Mich 943 (2003).
8
limitations, a court does so under MCR 2.116(C)(7).
review such claims de novo.
We
Fane v Detroit Library Comm,
465 Mich 68, 74; 631 NW2d 678 (2001). In making a decision
under MCR 2.116(C)(7), we consider all documentary evidence
submitted by the parties, accepting as true the contents of
the
complaint
documents
unless
affidavits
specifically
contradict
or
other
it.
appropriate
Fane,
supra;
see
also MCR 2.116(G)(5)-(6).
III. MEDICAL
MALPRACTICE VS. ORDINARY NEGLIGENCE
The first issue in any purported medical malpractice
case concerns whether it is being brought against someone
who, or an entity that, is capable of malpractice.
In
addressing this issue, defendant argues that, because MCL
600.5838a refers to “the medical malpractice of . . . an
employee or agent of a licensed health facility or agency
who is engaging in or otherwise assisting in medical care
and
treatment,”
malpractice
plaintiff’s
for
the
simple
claim
sounds
in
medical
that
it
alleges
reason
negligence committed by an employee of a licensed health
care
facility
treatment.
is
an
who
was
engaging
in
medical
care
and
In response, we point out that MCL 600.5838a(1)
accrual
statute
that
indicates
malpractice cause of action accrues.
when
a
medical
Additionally, as we
noted in Adkins v Annapolis Hosp, 420 Mich 87, 94-95; 360
NW2d
150
(1984),
this
statute
9
likewise
expands
the
traditional common-law list of those who are subject to
medical malpractice actions.8
However, we caution that,
although § 5838a expands the category of who may be subject
to a medical malpractice action, it does not define what
constitutes a medical malpractice action.9
The fact that an
8
In construing the former MCL 600.5838, in which, in
the context of an accrual statute, the Legislature listed a
wide array of specific health care professionals and
entities who could potentially be subject to medical
malpractice, we stated:
While it is true that [the former] RJA §
5838 is an accrual provision, not a definitional
section, there can be no other meaning of this
language other than that [those health care
occupations listed in the former § 5838] may be
guilty of malpractice. Otherwise, there would be
no reason to list those occupations in an accrual
section.
A malpractice action cannot accrue
against someone who, or something that, is
incapable of malpractice.
. . . [The former § 5838] evidenced a
legislative intent to alter the common law and
subject other health professionals [as opposed to
physicians
and
surgeons
only]
to
potential
liability for malpractice. [Adkins, 420 Mich 9495.]
The former § 5838 was amended by 1986 PA
178, as a result of which, the accrual provision
relevant to medical malpractice actions was
reenacted under the current § 5838a. Instead of
listing specific health care professionals and
entities subject to medical malpractice, the
current § 5838a refers generally to a “licensed
health
care
professional,
licensed
health
facility or agency, or an employee or agent of a
licensed health facility or agency who is
engaging in or otherwise assisting in medical
care and treatment . . . .”
9
Perhaps complicating an understanding of this body of
law is this Court’s unanimous peremptory order in 1998 in
Regalski v Cardiology Assoc, PC, 459 Mich 891 (1998).
In
10
employee of a licensed health care facility was engaging in
medical care at the time the alleged negligence occurred
means
that
the
plaintiff’s
claim
may
possibly
sound
in
medical malpractice; it does not mean that the plaintiff’s
claim certainly sounds in medical malpractice.
The second issue concerns whether the alleged claim
sounds in medical malpractice.
A medical malpractice claim
is distinguished by two defining characteristics.
First,
medical malpractice can occur only “‘within the course of a
Regalski, we were presented with a case in which the Court
of Appeals had held that the plaintiff’s claim that the
defendant’s medical technician was negligent in assisting
the patient’s movement out of a wheelchair and onto the
examining table was a matter of ordinary negligence.
We
reversed
and
concluded
that
this
was
not
ordinary
negligence but medical malpractice.
While the facts of that case were only briefly stated,
we interpret this Court’s Regalski holding to mean that the
facts in that case led to the conclusion that the
particular assistance rendered to that patient involved a
professional
relationship
and
implicated
a
medical
judgment.
Even in the wake of Regalski, then, injuries incurred
while a patient is being transferred from a wheelchair to
an examining table (to take one example) may or may not
implicate professional judgment.
The court must examine
the particular factual setting of the plaintiff’s claim in
order to determine whether the circumstances—for example,
the
medical
condition
of
the
plaintiff
or
the
sophistication required to safely effect the move—implicate
medical judgment as explained in Dorris.
In citing the medical malpractice accrual statute, MCL
600.5838a(1), in Regalski, we have caused some, including
defendant herein, to venture that we were holding that this
statute can also be understood as defining medical
malpractice.
This understanding is incorrect for the
reasons that we have stated.
11
professional relationship.’”
omitted).
Second,
Dorris, supra at 45 (citation
claims
of
medical
malpractice
necessarily “raise questions involving medical judgment.”
Id. at 46.
“raise
Claims of ordinary negligence, by contrast,
issues
that
are
within
the
experience of the [fact-finder].”
common
Id.
knowledge
and
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.
In considering whether there has been a professional
relationship
between
the
plaintiff
and
Dorris is central to our analysis.
Court held:
the
defendant,
In that case, this
“‘The key to a medical malpractice claim is
whether it is alleged that the negligence occurred within
the course of a professional relationship.’”
Id. at 45,
quoting Bronson v Sisters of Mercy Health Corp, 175 Mich
App
647,
652;
relationship
malpractice
438
NW2d
sufficient
exists
in
276
(1989).
A
professional
to
support
a
claim
of
medical
those
cases
in
which
a
licensed
12
health care professional, licensed health care facility, or
the agents or employees of a licensed health care facility,
were
subject
to
a
contractual
duty
that
required
that
professional, that facility, or the agents or employees of
that facility, to render professional health care services
to the plaintiff.
See Dyer v Trachtman, 470 Mich 45; 679
NW2d 311 (2004);10 Delahunt v Finton, 244 Mich 226, 230; 221
NW 168 (1928) (“Malpractice, in its ordinary sense, is the
negligent
performance
by
a
physician
or
surgeon
of
the
duties devolved and incumbent upon him on account of his
contractual relations with his patient.”);11 see also Hill v
Kokosky, 186 Mich App 300, 302-303; 463 NW2d 265 (1990);
Oja v Kin, 229 Mich App 184, 187; 581 NW2d 739 (1998).
After ascertaining that the professional relationship
test is met, the next step is determining whether the claim
raises
questions
of
medical
judgment
requiring
expert
10
We held in Dyer that in an action for negligence in
performing an independent medical examination (IME), the
plaintiff’s claim sounded in medical malpractice rather
than ordinary negligence, but that a physician incurred
only a limited form of medical malpractice liability in
performing the IME. Id. This conclusion was based on the
contractual relationship between the parties.
11
When the Delahunt decision was rendered in 1928,
only physicians and surgeons could be sued in medical
malpractice. See, for example, Kambas v St Joseph’s Mercy
Hosp of Detroit, 389 Mich 249; 205 NW2d 431 (1973).
As
observed in n 8, the Legislature has since expanded the
common-law list of those who potentially may be subject to
medical malpractice liability.
See MCL 600.5838a; Adkins,
420 Mich 94-95.
13
testimony or, on the other hand, whether it alleges facts
within
the
experience.
realm
If
of
the
a
jury’s
common
reasonableness
of
knowledge
the
and
health
care
professionals’ action can be evaluated by lay jurors, on
the basis of their common knowledge and experience, it is
ordinary
negligence.
If,
on
the
other
hand,
the
reasonableness of the action can be evaluated by a jury
only
after
having
been
presented
the
standards
of
care
pertaining to the medical issue before the jury explained
by experts, a medical malpractice claim is involved.
As we
stated in Dorris:
The determination whether a claim will be
held to the standards of proof and procedural
requirements of a medical malpractice claim as
opposed to an ordinary negligence claim depends
on whether the facts allegedly raise issues that
are within the common knowledge and experience of
the jury or, alternatively, raise questions
involving medical judgment.
[Dorris, supra at
46, citing Wilson v Stilwill, 411 Mich 587, 611;
309 NW2d 898 (1981).]
Contributing to an understanding of what constitutes a
“medical judgment” is Adkins v Annapolis Hosp, 116 Mich App
558; 323 NW2d 482 (1982), in which the Court of Appeals
held:
[M]edical malpractice . . . has been defined
as the failure of a member of the medical
profession,
employed
to
treat
a
case
professionally, to fulfill the duty to exercise
that
degree
of
skill,
care
and
diligence
exercised by members of the same profession,
practicing in the same or similar locality, in
light of the present state of medical science.
14
[Citation omitted.]
IV. ANALYSIS
OF ALLEGATIONS
We now turn to the complaint in the present case.12
Plaintiff
alleges
that
defendant
is
liable
for:
(1)
negligently failing to assure that plaintiff’s decedent was
provided with an accident-free environment; (2) negligently
failing to inspect the bed, bed frame, and mattress to
assure
the
plaintiff’s
decedent
was
not
at
risk
of
suffocation; (3) negligently failing to properly train its
CENAs
regarding
the
risk
to
decedent
of
positional
asphyxiation posed by the bed rails; and (4) negligently
failing to take steps to protect decedent from further harm
or injury after discovering her entangled between her bed
rail and mattress on March 1.
We address the application
of Dorris to each of these claims below.13
A. PROFESSIONAL
RELATIONSHIP
The first question in determining whether these claims
sound
in
ordinary
negligence
or
medical
malpractice
is
whether there was a professional relationship between the
12
Because the Court of Appeals majority in this case
based its decision on plaintiff’s June 1999 first amended
complaint, we will use the claims in that complaint to
analyze this case.
13
As stated, we address only Count I of plaintiff’s
first amended complaint.
Counts II and III (negligent
infliction of emotional distress and gross negligence) may
be addressed by the parties on remand in light of our
decision regarding count I.
15
allegedly
negligent
party
and
the
injured
party.
This
analysis is fairly straightforward and, in this case, is
identical
for
each
of
plaintiff’s
claims.
Because
defendant, Oakpointe Villa Nursing Centre, Inc., a licensed
health
care
facility,
was
under
a
contractual
duty
requiring both it and its employees to render professional
health
care
services
to
plaintiff’s
decedent,
a
professional relationship existed to support a claim for
medical malpractice.
B.
MEDICAL JUDGMENT
VS.
LAY KNOWLEDGE
The second question is whether the acts of negligence
alleged “raise issues that are within the common knowledge
and
experience
of
the
jury
or,
alternatively,
questions involving medical judgment.”
raise
Dorris, supra at
46.
1.
“ACCIDENT-FREE
ENVIRONMENT”
Plaintiff’s first claim is that defendant “fail[ed] to
assure
that
plaintiff’s
decedent
accident-free environment.”
liability
that
negligence
or
ordinary
is
not
medical
negligence,
was
with
an
This is an assertion of strict
cognizable
malpractice.
the
provided
test
is
in
either
With
whether
ordinary
reference
the
to
defendant
breached a duty that proximately caused an injury to the
plaintiff.
See, e.g., Haliw v Sterling Hts, 464 Mich 297,
309-310; 627 NW2d 581 (2001).
16
With reference to medical
malpractice
law,
the
Legislature
has
directed
in
600.2912a et seq., that negligence is the standard.
strict
liability
is
inapplicable
negligence or medical malpractice.
to
either
MCL
Thus,
ordinary
As a result, because
this claim is unrecognized in this area of our law, this
allegation states no claim at all.
2.
FAILURE
TO TRAIN
Next, we must determine whether plaintiff’s claim that
defendant failed to train its staff “to assess the risk of
potential asphyxia” is one that requires expert testimony
on medical issues.
In Dorris at 47, we stated that the
plaintiff’s allegations “concerning staffing decisions and
patient
monitoring
involve
medical
management
and
questions
are
not
of
issues
professional
of
ordinary
negligence that can be judged by the common knowledge and
experience of a jury.”
That is not to say, however, that
all cases concerning failure to train health care employees
in the proper monitoring of patients are claims that sound
in
medical
whether
the
malpractice.
alleged
The
facts
pertinent
raise
question
questions
of
remains
medical
judgment or questions that are within the common knowledge
and experience of the jury.
Id. at 46.
In Dorris, the staff training and patient monitoring
issue
sounded
in
medical
malpractice
because
“[t]he
ordinary layman does not know the type of supervision or
17
monitoring that is required for psychiatric patients in a
psychiatric ward.”
knowing
how
to
Id. at 47 (emphasis added).
correctly
monitor
psychiatric
That is,
patients
requires a specialized knowledge of the complex diseases of
the mind that may affect psychiatric patients and how those
diseases may influence their behavior, and such knowledge
is simply not within the realm of “common knowledge.”
Similarly, in order to assess the risk of positional
asphyxiation posed by bed railings, specialized knowledge
is
generally
required,
as
was
notably
shown
by
the
deposition testimony of plaintiff’s own expert, Dr. Steven
Miles.
Dr. Miles testified that hospitals may employ a
number of different bed rails depending on the needs of a
particular
whether
a
patient.14
bed
rail
patient
requires
history
and
Accordingly,
creates
knowledge
behavior.15
a
of
It
risk
the
of
that
is
assessment
entrapment
patient’s
this
for
of
a
medical
particularized
14
Deposition Testimony of Dr. Steven Miles (“Well,
first off, there’s no such thing as generic side rails.”).
15
Dr. Miles testified:
Q. Okay.
When you indicated that [Hunt]
required assistance for activities of daily
living, are all persons who require assistance
for such activities at risk for entrapment?
A. No. As I stated in my previous comment,
that the overall profile is one of being frail
and disabled and having poor judgment and a
history of impulsive behavior and a history of
18
knowledge, according to Dr. Miles, that should prompt a
treating facility to use the bedding arrangement that best
suits a patient’s “individualized treatment plan,” and to
properly
train
inherent
in
its
that
employees
bedding
to
recognize
arrangement
and
to
any
risks
adequately
monitor patients to minimize those risks.
In
describing
the
appropriate
arrangement
for
plaintiff’s decedent, Dr. Miles testified:
This patient had a long history of slide and
fall-type injuries, and her entire environment
should have been adjusted as part of the
individualized treatment plan for this.
And furthermore, the facility had a general
obligation to all of its patients, including Ms.
Hunt, to provide beds that did no prevent—present
a space that was large enough for an entrapment
asphyxiation.
And
they
should
have
been
particularly aggressive in using that type of
equipment for Ms. Hunt.
This testimony demonstrates that the ability to assess the
risk
of
positional
employees
to
asphyxia
properly
and,
assess
that
exercise of professional judgment.
gets
more
complicated
when
thus,
one
the
risk,
training
involves
of
the
The picture necessarily
considers
additional
restraint mechanisms used in tandem with bed railing such
as vests or pelvic restraints to promote the safety of
patients.
previous near entrapments.
These are the people
who are at risk, not the presence of any one of
those.
19
Indeed,
an
article
in
the
Journal
of
the
American
Geriatrics Society coauthored by plaintiff’s expert, Dr.
Miles,
stresses
the
need
for
“clinical
and
ergonomic
changes” in the use of bed rails and decries the widespread
use of bed railings “without . . . a clear sense of their
role in a treatment plan and without regulatory attention
to their design.”16
This article concludes with a call for
nursing homes to limit the use of bedrails, but notes that
research
into
the
relative
costs
and
benefits
of
using
bedrails is “needed urgently.”17
This
defendant
much
is
clear:
adequately
in
trained
order
its
to
CENAs
determine
to
whether
recognize
the
risks posed by particular configurations of bed rails and
other prescribed restraint systems, therefore, the factfinder
will
specialists
about
generally
in
require
expert
use
of
these
risks
their
the
and
on
how
testimony
systems
much
of
on
what
currently
know
this
knowledge
defendant ought to have conveyed to its staff.
Given
the
patent
need
in
this
case
for
expert
testimony regarding plaintiff’s claim of failure to train,
we conclude that this claim sounds in medical malpractice
under Dorris.
16
Kara Parker and Steven H. Miles, Deaths caused by
bedrails, 45 J Am Geriac Soc 797 (1997).
17
Id., p 799.
20
3.
FAILURE
TO INSPECT
Next, plaintiff alleges that defendant is liable for
“[n]egligently and recklessly failing to inspect the beds,
bed
frames
and
mattress
to
of
It is clear from the record in this case that
defendant
and
its
for
risk
decedent.”
to
exist
the
asphyxia
“failure
not
that
positional
plaintiff’s
did
assure
plaintiff’s
inspect”
is
not
actually
agents
claim
failed
to
that
check
Ms.
Hunt’s bedding arrangements,18 but that defendant failed to
recognize that her bedding arrangements posed a risk of
asphyxiation.
As
shown
deposition
above,
testimony
asphyxiation
posed
a
given
history.
of
by
patient to patient.
for
and
patient
a
as
demonstrated
plaintiff’s
bedding
expert,
arrangement
through
the
the
risk
varies
of
from
The restraining mechanisms appropriate
depend
upon
that
patient’s
medical
Thus, restraints such as bed railings are, in the
terminology
of
plaintiff’s
expert
physician,
part
of
a
patient’s “individualized treatment plan.”
The risk assessment at issue in this claim, in our
judgment, is beyond the ken of common knowledge, because
18
Indeed,
plaintiff
repeatedly
stresses
that
defendant’s agents saw the gap between the bed and the
railing and failed to recognize that this gap created a
risk of asphyxiation.
See § IV(B)(4) later in this
opinion.
21
such an assessment require understanding and consideration
of
the
risks
particular
and
set
of
benefits
of
restraints
using
in
and
light
medical history and treatment goals.
maintaining
of
a
a
patient’s
In order to determine
then whether defendant has been negligent in assessing the
risk posed by Hunt’s bedding arrangement, the fact-finder
must rely on expert testimony.
This claim, like the claim
described above, sounds in medical malpractice.
4. FAILURE
We
those
turn,
finally,
discussed
to
a
previously.
TO TAKE STEPS
claim
fundamentally
Plaintiff
unlike
alleges
that
defendant “[n]egligently and recklessly fail[ed] to take
steps
to
protect
plaintiff’s
decedent
when
she
was,
in
fact, discovered on March 1 [1997] entangled between the
bed rails and the mattress.”
This claim refers to an incident on March 1, 1997—the
day before Ms. Hunt was asphyxiated—when two of defendant’s
CENAs found Ms. Hunt tangled in her bedding and dangerously
close to asphyxiating herself in the bed rails.
According
to the CENAs, they moved Ms. Hunt away from the rail and
informed their supervising nurses that Ms. Hunt was at risk
of asphyxiation.
Plaintiff now contends, therefore, that defendant had
notice of the risk of asphyxiation through the knowledge of
its
agents
and,
despite
this
22
knowledge
of
the
problem,
defendant did nothing to rectify it.
that
plaintiff’s
defendant
took
allegation
in
inappropriate
It bears repeating
this
steps
claim
in
is
dealing
not
that
with
the
patient’s compulsive sliding problem or that defendant’s
agents were negligent in creating the hazard in the first
place.
Instead, plaintiff claims that defendant knew of
the hazard that led to her death and did nothing about it.
This claim sounds in ordinary negligence.
testimony
is
necessary
to
determine
No expert
whether
defendant’s
employees should have taken some sort of corrective action
to prevent future harm after learning of the hazard.
The
fact-finder can rely on common knowledge and experience in
determining whether defendant ought to have made an attempt
to reduce a known risk of imminent harm to one of its
charges.
Suppose,
for
example,
that
two
CENAs
employed
by
defendant discovered that a resident had slid underwater
while taking a bath.
Realizing that the resident might
drown, the CENAs lift him above the water.
They recognize
that the resident’s medical condition is such that he is
likely
to
slide
underwater
again
and,
accordingly,
notify a supervising nurse of the problem.
they
The nurse,
then, does nothing at all to rectify the problem, and the
resident drowns while taking a bath the next day.
If a party alleges in a lawsuit that the nursing home
23
was negligent in allowing the decedent to take a bath under
conditions known to be hazardous, the Dorris standard would
dictate that the claim sounds in ordinary negligence.
No
expert testimony is necessary to show that the defendant
acted negligently by failing to take any corrective action
after learning of the problem.
A fact-finder relying only
on common knowledge and experience can readily determine
whether the defendant’s response was sufficient.
Similarly,
order
to
no
expert
determine
testimony
whether
is
defendant
required
in
negligent
was
here
in
failing to respond after its agents noticed that Ms. Hunt
was at risk of asphyxiation.
Professional judgment might
be implicated if plaintiff alleged that defendant responded
inadequately,
allegation
but,
in
given
this
case,
the
substance
the
of
fact-finder
plaintiff’s
need
only
determine whether any corrective action to reduce the risk
of reccurrence was taken after defendant’s agents noticed
that Ms. Hunt was in peril.
claim
of
ordinary
Thus, plaintiff has stated a
negligence
under
the
standards
articulated in Dorris.
V. STATUTE
OF
LIMITATIONS
Having decided that three of plaintiff’s claims sound
in
medical
malpractice,
we
must
determine
whether
plaintiff’s medical malpractice claims are now time-barred.
See MCR 2.116(C)(7).
24
The period of limitations for a medical malpractice
action
is
ordinarily
two
years.
MCL
600.5805(6).
According to MCL 600.5852, plaintiff had two years from the
date
she
was
representative
issued
of
letters
Hunt’s
malpractice complaint.
of
authority
estate
to
as
personal
a
medical
file
Because the letters of authority
were issued to plaintiff on January 20, 1998, the medical
malpractice action had to be filed by January 20, 2000.
Thus, under ordinary circumstances, plaintiff’s February 7,
2001, medical malpractice complaint (her third complaint in
total) would be time-barred.
The equities of this case, however, compel a different
result.
medical
The
distinction
malpractice
and
between
those
actions
sounding
sounding
in
in
ordinary
negligence is one that has troubled the bench and bar in
Michigan,
even
in
the
wake
of
our
opinion
in
Dorris.
Plaintiff’s failure to comply with the applicable statute
of
limitations
is
the
product
of
an
understandable
confusion about the legal nature of her claim, rather than
a negligent failure to preserve her rights.
for this case and others now pending
procedural
circumstances,
we
Accordingly,
that involve similar
conclude
that
plaintiff’s
medical malpractice claims may proceed to trial along with
plaintiff's ordinary negligence claim.
MCR 7.316(A)(7).
However, in future cases of this nature, in which the line
25
between ordinary negligence and medical malpractice is not
easily distinguishable, plaintiffs are advised as a matter
of prudence to file their claims alternatively in medical
malpractice and ordinary negligence within the applicable
period of limitations.19
VI. CONCLUSION
Plaintiff has stated two claims that require expert
testimony
and
therefore
Although
these
claims
sound
were
in
filed
medical
after
malpractice.
the
applicable
period of limitations had run and would ordinarily be timebarred, the procedural features of this case dictate that
plaintiff should be permitted to proceed with her medical
malpractice claims.
The claim that defendant negligently
failed to respond after learning that Ms. Hunt’s bedding
arrangements
created
ordinary negligence.
a
risk
of
asphyxiation
sounds
in
Finally, plaintiff’s claim regarding
an “accident-free environment” sounds in strict liability
and
is
not
cognizable.
Accordingly,
we
reverse
the
judgment of the Court of Appeals and remand this case to
the circuit court for further proceedings consistent with
19
If the trial court thereafter rules that the claim
sounds in ordinary negligence and not medical malpractice,
and may thus proceed in ordinary negligence, and this
ruling is subsequently reversed on appeal, the plaintiff
will nonetheless have preserved the right to proceed with
the medical malpractice cause of action by having filed in
medical malpractice within the period of limitations.
26
this opinion.
Stephen J. Markman
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
27
S T A T E
O F
M I C H I G A N
SUPREME COURT
DENISE BRYANT, personal
representative of the estate
of Catherine Hunt, deceased,
Plaintiff-Appellee,
v
Nos. 121723-121724
OAKPOINTE VILLA NURSING CENTRE,
INC.,
Defendant-Appellant.
_______________________________
KELLY, J. (dissenting).
The
question
in
this
case
is
whether
plaintiff's
claims sound in medical malpractice or ordinary negligence.
I
disagree
with
the
majority’s
reading
of
plaintiff’s
complaint and believe that all of plaintiff’s claims sound
in
ordinary
negligence.
I
also
disagree
with
the
majority’s analysis of the statute of limitations issue.
BACKGROUND
Plaintiff's
nursing
care
decedent
facility.
was
a
Among
resident
her
of
needs
defendant’s
were
safety
restraints on her bed to prevent her from falling out and
injuring
herself.
In
early
1997,
defendant’s
nurses’
assistants noted that she had developed a propensity to
move around in bed.
Because of her petite stature and the
configuration of the bed, she was in danger of slipping
under the bedrails and catching her neck.
This could lead
to strangulation and death.
Shortly after, the assistants’ fears were realized.
First, they discovered plaintiff’s decedent “tangled up in
the
rails,”
her
clothes,
and
the
bedding.
They
successfully extricated her, but feared that she was in
grave danger of being hanged.
the
restraint
configuration.
Yet, no change was made in
The
next
day,
discovered caught by her neck under the rails.
she did not recover.
she
was
This time,
She died two days later after being
removed from life support.
Plaintiff
Following
brought
pretrial
suit
motions
against
for
the
summary
facility.
disposition,
plaintiff was allowed to file a first amended complaint in
June
1999.
ordinary
She
alleged
negligence,
three
negligent
distress, and gross negligence.1
counts
infliction
Ante at 6.
of
negligence:
of
emotional
Central to the
resolution of this case is plaintiff’s count for ordinary
negligence.
The
distinct
ordinary
claims.
negligence
The
first
1
count
was
consisted
that
of
defendant,
four
by
Plaintiff
alleged
that
defendant
negligently
inflicted emotional distress on her by attempting to
conceal the true circumstances of her decedent's death.
The third count alleged that the nurses’ assistants were
grossly negligent for failing to inform their supervisors
that they had found decedent entangled in her bedding the
day before her death.
2
providing medical care and housing to plaintiff’s decedent,
owed
her
decedent
environment.
a
duty
to
provide
an
accident-free
Defendant had a duty, plaintiff asserted, to
assure that plaintiff’s decedent was not subjected to an
unreasonable risk of injury.
Second, plaintiff asserted that defendant breached its
duty to train its staff to recognize the danger posed by
bedrails.
According to plaintiff’s complaint, defendant
had received specific information about this danger from
the United States Food and Drug Administration (FDA).
The
allegation is that defendant failed to take precautions or
share this information with its staff.
Third,
plaintiff
asserted
that
defendant
discovered
plaintiff’s decedent caught between the rails and mattress.
Plaintiff
complains
recurrence
by
that
not
defendant
remedying
failed
the
to
prevent
a
rails-mattress
configuration.
Fourth, plaintiff asserted that defendant had failed
to inspect the bed’s configuration to ensure that a danger
of strangulation was not present.
Defendant
moved
for
summary
disposition
under
MCR
2.116(C)(7), and the circuit court granted the motion.
It
determined that plaintiff’s ordinary negligence claims were
really allegations of medical malpractice.
Plaintiff appealed to the Court of Appeals.
3
She also
took measures to preserve her claims as malpractice claims
by filing an amended complaint and a notice of intent to
sue pursuant to MCL 600.2912b.
Defendant moved to dismiss,
asserting that the suit was time-barred under the medical
malpractice
statutory
600.5805(6).
When
period
the
of
circuit
limitations.
court
held
MCL
that
the
statutory period had been tolled, defendant went to the
Court of Appeals.
The
Court
appeals.
of
Appeals
consolidated
both
parties'
It concluded that plaintiff's claims sounded in
ordinary negligence, adding that they would be barred by
the
limitations
malpractice.
21,
2002
defendant’s
period
if
they
sounded
in
medical
Unpublished opinion per curiam, issued May
(Docket
Nos.
subsequent
228972,
234992).
application
for
We
leave
granted
to
appeal.2
468 Mich 943 (2003).
The majority determines that only one of plaintiff’s
claims sounds in ordinary negligence, that another is not
cognizable under Michigan law, and that the other two are
medical malpractice claims.
facts:
It bases its holding on two
One, defendant did not respond at all upon finding
plaintiff’s
therefore,
decedent
one
of
entangled
plaintiff’s
2
in
claims
her
is
bedding
for
and,
ordinary
We also ordered that the case be argued and submitted
with Lawrence v Battle Creek Health Systems, 468 Mich 944
(2003).
4
negligence.
Two, the use of bedrails must be prescribed by
a medical professional and, therefore, the remaining claims
necessarily sound in medical malpractice.
STANDARD OF REVIEW
We review motions for summary disposition under MCR
2.116(C)(7) de novo.
complaint
and
documents
specifically
We accept the allegations in the
documentary
evidence
contradict
as
true
them.
unless
Fane
v
other
Detroit
Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).
MEDICAL MALPRACTICE VERSUS ORDINARY NEGLIGENCE
In
Adkins
v
Annapolis
Hosp,3
we
recognized
that
ordinary negligence could occur in the course of medical
care.
In this case, plaintiff is alleging that ordinary
negligence
occurred.
She
does
not
dispute
that
a
professional medical relationship existed between defendant
and her decedent.
But she relies on the established fact
that every medical professional remains under a duty to
exercise reasonable care.
Also, professional standards of
medical care supplement but do not necessarily supplant the
ordinary duty of care.
Various differences exist between medical malpractice
and negligence.
When medical malpractice occurs, there has
been a failure or omission that cannot be assessed by a
3
420 Mich 87; 360 NW2d 150 (1984).
See also Dyer v
Trachtman, 470 Mich 45, 54 n 5; 679 NW2d 311 (2004).
5
layperson; it involves a matter that requires the exercise
of
professional
testimony,
the
medical
ordinary
judgment.
juror
Without
cannot
expert
determine
if
a
defendant medical professional has fulfilled its duty of
professional care.
Dorris v Detroit Osteopathic Hosp Corp,
460 Mich 26, 47; 594 NW2d 455 (1999).
By contrast, expert
witnesses are not always required in ordinary negligence
actions because the trier of fact can often rely on its own
common
knowledge
and
experience.
In
addition,
medical
malpractice actions involve the alleged breach of medical
standards of care; negligence actions do not.
THE NEGLIGENCE ALLEGED
Here,
plaintiff’s
amended
complaint
defendant was negligent in four ways.
alleged
that
Defendant is alleged
to have breached its duties to
(a) . . . assure that plaintiff’s decedent
was provided with an accident-free environment;
(b) . . . train
[nurses’
assistants]
to
assess the risk of positional asphyxia by
plaintiff’s decedent despite having received
specific warnings . . . ;
(c) . . . take steps to protect plaintiff’s
decedent when she was, in fact, discovered on
March 1 [1997] entangled between the bed rails
and the mattress;
(d) . . . inspect the beds, bed frames and
mattresses to assure that the risk of positional
asphyxia did not exist for plaintiff’s decedent.
With respect to the first claim, I disagree with the
majority that plaintiff’s assertion of a duty to provide an
accident-free environment is not cognizable under Michigan
6
law.
Ante at 17-18.
We have consistently held that the
nature of the claim alleged is based on the underlying
facts.
It is independent of the words used to describe it.
See Dorris at 43.
Plaintiff's
care.
As
obligated
decedent
the
to
reasonably
Court
take
safe
of
was
in
Appeals
reasonable
defendant’s
stated,
defendant
precautions
environment.
custodial
to
Unpublished
provide
opinion
was
a
per
curiam, issued May 21, 2002 (Docket Nos. 228972, 234992),
citing Owens v Manor Health Care Corp, 159 Ill App 3d 684,
688;
512
NE2d
820
(1987).
A
breach
of
support a claim for ordinary negligence.
this
duty
can
Plaintiff's first
claim should be read to mean that defendant was obligated
to
provide
an
environment
free
of
negligently
caused
accidents.
Contrary
to
the
majority’s
reading
of
this
claim,
plaintiff has not asserted that defendant was the guarantor
of the safety of plaintiff's decedent.
The ordinary juror
can assess whether defendant’s alleged actions or inactions
constituted reasonable measures to fulfill its duty.
The second claim is that defendant breached its duty
to train its nurses’ assistants.
that
assessing
medical
the
expertise.
medical
I agree with the majority
needs
Similarly,
of
patients
assessing
requires
whether
those
needs were adequately addressed requires medical expertise.
7
See part IV(B)(2) ante.
However, a fair reading of this
claim reveals that plaintiff is not challenging defendant’s
assessment
of
her
decedent’s
medical
needs.
Moreover,
plaintiff is not challenging whether bed rails and other
restraints were appropriately prescribed.
Instead, plaintiff asserts that defendant knew of the
dangers posed by bed rails, yet, it took no steps to pass
this information along to its employees.
As the majority
opines,
[n]o expert testimony is necessary to determine
whether [defendant] should have taken some sort
of corrective action to prevent future harm after
learning of the hazard. The fact-finder can rely
on common knowledge and experience in determining
whether defendant ought to have made an attempt
to reduce a known risk of imminent harm to one of
its charges.[4]
“Some sort of corrective action” may include, as plaintiff
alleges,
training
information
to
employees
them
that
employees or the FDA.
or
it
passing
has
along
learned
specific
from
other
Plaintiff asserts that defendant
failed to act once it had knowledge of a hazard, not that
it breached a medical standard of care.
Hence, this claim
sounds in ordinary negligence as well.
Plaintiff’s
third
and
fourth
claims
concern
defendant’s actions with respect to her decedent becoming
entangled in the bedding.
Plaintiff alleged that defendant
4
See ante at 24, discussing plaintiff’s claim for
defendant’s failure to respond after initially finding
plaintiff's decedent entangled in her bedding.
8
failed to “take steps to protect plaintiff’s decedent when
she was, in fact, discovered on March 1 [1997] entangled
between the bed rails and the mattress” and to “inspect the
beds, bed frames and mattresses to assure that the risk of
positional
asphyxia
did
not
exist
for
plaintiff’s
decedent.”
Plaintiff asserts that the nurses’ assistants employed
by
defendant
failed
to
notify
their
supervisors
when
plaintiff’s decedent was found caught in the bedrails on
the first occasion.
a
warning
was
Alternatively, plaintiff asserts that
given
to
the
supervisors
that
they
disregarded.
Again,
plaintiff
states:
they
“[n]egligently
and
recklessly fail[ed] to inspect the beds, bed frames and
mattresses to assure that the risk of positional asphyxia
did
not
exist
.
.
.”
and
“to
plaintiff’s decedent . . . .”
breach
of
plaintiff’s
a
duty
of
decedent
due
that
take
steps
to
protect
These allegations assert the
care
can
be
owed
by
evaluated
defendant
by
to
ordinary
jurors.
Defendant’s
nurses’
assistants
were
alerted
to
the
danger when two of them first found plaintiff’s decedent
trapped in the bedrails.
although
she
did
not
One specifically testified that,
comprehend
the
medical
needs
of
plaintiff’s decedent, she recognized that the decedent was
9
in
serious
physical
danger.
She
expressed
to
her
supervisor her fear that the elderly woman would be found
dead if something were not done.
Plaintiff
nurses’
has
presented
assistants
did
not
evidence
require
that
defendant’s
medical
training
to
understand that this small, frail person could again slip
under the bedrail and jam her neck, endangering her life.
Medical training was not needed to instruct them that the
bedrail-mattress configuration had to be changed.
Laypersons can properly assess whether the manner in
which
bedrails
unreasonable
decedent.
and
risk
The
mattresses
of
harm
claims
do
medical standard of care.
to
not
are
a
configured
person
involve
like
the
creates
an
plaintiff's
breach
of
a
They involve simple neglect to
act or ordinary negligence, as the majority concedes.
Unlike the majority, I do not place undue emphasis on
the
fact
that
the
nurses’
assistants
had
previously
discovered plaintiff's decedent in a dangerous position.
Ante
at
25.
Any
person
caring
for
her
could
have
recognized the danger that the bedding posed to a petite,
frail, and elderly person who lacked normal control over
her movements.5
5
One nurses’ assistant testified that she recognized
the
dangerous
bedding
arrangement
that
entangled
plaintiff's decedent on a previous occasion even though she
was not plaintiff’s decedent’s usual caregiver.
This
10
The danger here was similar to that experienced by an
infant in a crib whose mattress is too small and whose
rails allow the baby to slip through.
Those caring for
such a child would quickly recognize the danger, and an
expert would not be required to point it out.
Similarly,
ordinary jurors can assess whether defendant's caregivers
here should have recognized the danger and acted with due
care.
As stated earlier in this opinion, the nature of the
claim is independent of the words used to describe it.
Plaintiff
used
the
proper
describe being hanged.
term
“positional
asphyxia”
to
However, use of the medical term
does not transform plaintiff's negligence claim into one
sounding in malpractice.
Defendant’s
supposition
that
ordinary
people
are
incapable of recognizing an obvious danger of hanging is
untenable,
particularly
here
where
actually did recognize the danger.
hazard
does
not
require
untrained
people
The assessment of a
professional
training
merely
because a professional is capable of assessing it as well
and can explain the exact mechanism of the danger.
If that
were true, a physical science expert would be required in
this case as well as a medical one.
That expert would be
assistant had not had an opportunity to observe plaintiff's
decedent for a prolonged period.
11
needed to inform the jury how plaintiff’s decedent was in
danger of strangulation because gravity would pull her down
once she slipped beneath the bedrails.
STATUTE OF LIMITATIONS
Generally the period of limitations is tolled at the
time the complaint is filed.
for
an
action
years.
premised
MCL 600.5856(a).
on
ordinary
The period
negligence
is
three
MCL 600.5805(10); Stephens v Dixon, 449 Mich 531;
536 NW2d 755 (1995).
Plaintiff’s decedent died in March
1997, and plaintiff brought her action in April 1998.
This
was well within the period of limitations applicable to
ordinary
negligence
actions,
as
well
as
actions premised on medical malpractice.
wrongful
death
MCL 600.5852; MCL
600.5805(6).
Still well within the applicable period of
limitations,
the
trial
court
initially
ruled
plaintiff’s claim sounded in ordinary negligence.
under
MCL
600.5856(a),
the
period
of
that
Thus,
limitations
was
tolled.
I believe that plaintiff and other similarly situated
litigants are entitled to rely on a trial court’s decision
that their case sounds in ordinary negligence.
of
plaintiff's
ordinary
negligence
complaint
The filing
tolled
the
period of limitations, at least until the new trial judge
reversed that decision.
“Plaintiff’s
failure
to
12
comply
with
the
applicable
statute
of
limitations”
understandable
claim
.
confusion
.”6
.
was
and
less
about
more
the
the
the
“product
legal
product
of
nature
of
[her]
of
her
plaintiff’s
justifiable reliance on the trial court’s initial ruling.
This
plaintiff’s
Court
need
so-called
not
resort
medical
to
equity
malpractice
to
claims.
save
MCL
600.5856(a) and the initial trial court decision dictated
that
plaintiff’s
filing
of
the
ordinary
negligence
complaint tolled the running of the period of limitations.
Finally,
the
majority’s
“prudent”
decision
that
obliges someone injured by a negligent medical practitioner
to
allege
alternate
theories
of
medical
malpractice
and
ordinary negligence pertaining to a single injury is illconceived.
It
needlessly
complicates
and
impedes
the
injured person's efforts to recover through the courts from
those responsible for his plight.
The majority’s free and
unsolicited advice sends the wrong message to the bench and
bar, and places an undue burden on injured people.
CONCLUSION
In this case, plaintiff has alleged that defendant had
notice of a risk of harm that was readily apparent to the
layperson and could have been rectified by a layperson.
She has also alleged that, after receiving notice of the
danger, defendant negligently missed several opportunities
6
Ante at 26.
13
to avert it.
Medical expertise is not required to determine whether
defendant’s
nonresponses
ordinary care.
constituted
a
failure
to
take
An expert could render an opinion on the
issues in this case, but it is unnecessary because the case
does not raise questions of medical judgment.
It does not
involve the breach of medical standards of care.
Instead,
the issues are within the common knowledge and experience
of
lay
jurors.
Hence,
plaintiff
should
be
enabled
to
proceed under a theory of ordinary negligence.
Moreover, if any of plaintiff’s claims did sound in
medical malpractice, more than the equities of this case
require
that
plaintiff
be
allowed
to
proceed;
plaintiff
reasonably relied on the decisions of the lower courts that
all her claims sound in ordinary negligence.
The
affirmed
decision
of
to
extent
the
the
Court
that
of
it
Appeals
found
that
plaintiff's claims sound in negligence.
Marilyn Kelly
Michael F. Cavanagh
14
should
all
be
of
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