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McLain v. Lansing Fire Dep't

Court of Appeals of Michigan

March 3, 2015

TOD MCLAIN, Personal Representative of the ESTATE OF TRACY MCLAIN, Plaintiff-Appellant,

Page 646

Ingham Circuit Court. LC No. 11-000859-NH.



Before: SAAD, P.J., and OWENS and K. F. KELLY, JJ.


Page 647

[309 Mich.App. 336] Saad, P.J.

Plaintiff appeals the trial court's grant of summary disposition in favor of defendants. For the reasons stated in this opinion, we affirm.


This case involves the death of plaintiff's decedent, Tracy McLain. According to plaintiff's original complaint, McLain suffered a respiratory attack in February 2009. When emergency personnel arrived, they administered medication and CPR, and inserted a breathing tube into McLain. Though McLain was promptly delivered to the hospital, she was declared brain-dead several days after her admission, and died soon after. Plaintiff's complaint attributed her death to defendant Jeffrey Williams's[1] alleged placement of the breathing tube in her esophagus instead of her trachea.[2]

In deposition, Williams said that he followed proper procedure during McLain's treatment, and that he did not place the breathing tube in McLain's esophagus--nor did he see anyone else do so. He also stated that (1) the intubating procedure appeared to have been successful, (2) he and other emergency personnel continuously monitored McLain's status on the way to the hospital, and (3) he did not know how the tube could have been in her esophagus, apart from the possibility that it became dislodged. In addition to stressing Williams's statement that he did not place the breathing tube in McLain's esophagus, defendants argued that the governmental tort liability act (GTLA), MCL 691.1401, et seq., and the emergency medical services act (EMSA), MCL 333.20901 et seq.,

Page 648

provided them with immunity from plaintiff's suit.

[309 Mich.App. 338] After an initial hearing, the trial court held that the GTLA did not give defendants immunity from plaintiff's suit.[3] It further permitted plaintiff to file an amended complaint that alleged gross negligence or willful misconduct, to avoid the immunity defendants claimed under the EMSA. Plaintiff filed such an amended complaint, and defendants responded by moving for summary disposition under MCR 2.116(C)(7).

After another hearing, the trial court granted defendants' motion for summary disposition. It held that plaintiff had failed to create a question of fact that defendants treated McLain with " gross negligence" or " willful misconduct," and that defendants were therefore entitled to immunity under the EMSA. The trial court also noted that the only evidence presented by plaintiff that suggested any error by defendants in their treatment of McLain--(1) medical progress notes[4] from the hospital that stated the breathing tube was [309 Mich.App. 339] located in McLain's esophagus (though the notes did not indicate when the breathing tube might have lodged itself in McLain's esophagus); and (2) plaintiff's assertion that Williams's testimony was not credible--was either of dubious admissibility and accuracy, or unsupported.[5]

Page 649

On appeal, plaintiff claims that the trial court should have granted him summary disposition under MCR 2.116(C)(9), or entered a default order against defendants under MCR 2.603(A), because defendants supposedly did not file an affidavit of meritorious defense. Plaintiff also asserts that the trial court erred [309 Mich.App. 340] when it held that, as a matter of law, plaintiff had failed to show that defendants acted with gross negligence under the EMSA. Defendants ask us to uphold the ruling of the trial court.


A trial court's decision on a motion for summary disposition is reviewed de novo. Ardt v Titan Ins Co, 233 Mich.App. 685, 688; 593 N.W.2d 215 (1999). When it grants a motion under MCR 2.116(C)(7), a trial court should examine all documentary evidence submitted by the parties, accept all well-pleaded allegations as true, and construe all evidence and pleadings in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Jesperson v Auto Club Ins Ass'n, 306 Mich.App. 632, 640; 858 N.W.2d 105 (2014).

A trial court's decision on whether to enter a default in response to a defendant's failure to submit an affidavit of meritorious defense is reviewed for an abuse of discretion. See Kowalski v Fiutowski, 247 Mich.App. 156, 163-166; 635 N.W.2d 502 (2001). A trial court does not abuse its discretion when it chooses an outcome within the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 N.W.2d 809 (2006).



MCL 600.2912e(1) specifies that:

In an action alleging medical malpractice, within 21 days after the plaintiff has filed an affidavit in compliance with [MCL 600.2912d], the defendant shall file an answer to the complaint. Subject to subsection (2), the defendant or, if the defendant is represented by an attorney, the defendant's [309 Mich.App. 341] attorney shall file, not later than 91 days after the plaintiff or the plaintiff's attorney serves the affidavit required under [MCL 600.2912d], an affidavit of meritorious defense signed by a health professional who the defendant's attorney reasonably believes meets the requirements for an expert witness under [MCL 600.2169].[6]

However, a medical malpractice defendant who asserts governmental immunity under the GTLA is not required to file an affidavit of meritorious defense pursuant to MCL 600.2912e(1):

Because governmental employees are immune from breaches of the standard of ordinary care, the affidavit of merit requirements of MCL 600.2912e are not relevant to a defendant otherwise entitled to governmental immunity, and we therefore conclude that such a defendant may not lose the benefit of that immunity merely by failing to timely file the affidavit of meritorious defense. [ Costa v Community Emergency Med Servs, Inc, 475 Mich. 403, 412-413, 716 N.W.2d 236 (2006).]

Although the EMSA is a separate statute from the GTLA, the two laws " share the common purpose of immunizing certain agents from ordinary negligence and permitting liability for gross negligence." Jennings v Southwood, 446 Mich. 125, 136; 521 N.W.2d 230 (1994). As such,

Page 650

" the terms of the provisions should be read in pari materia." Id. Accordingly, a defendant who claims immunity under the EMSA may not lose the benefit of that immunity merely by failing to timely file an affidavit of meritorious defense under MCL 600.2912e.

Here, plaintiff says that the trial court erred when it denied his motion for summary disposition under MCR 2.116(C)(9) and his motion for entry of a default under [309 Mich.App. 342] MCR 2.603(A), because defendants did not file an affidavit of meritorious defense. However, defendants argued that they were immune from plaintiff's suit under the GTLA and the EMSA. They were, therefore, not required to file an affidavit of meritorious defense, and the trial court correctly denied plaintiff's motions. See Costa, 475 Mich. at 412-413.[7]


MCL 333.20965(1) states:

Unless an act or omission is the result of gross negligence or willful misconduct, the acts or omissions of a medical first responder, emergency medical technician, emergency medical technician specialist, paramedic, medical director of a medical control authority or his or her designee . . . while providing services to a patient outside a hospital, in a hospital before transferring patient care to hospital personnel, or in a clinical setting that [309 Mich.App. 343] are consistent with the individual's licensure or additional training required by the medical control authority . . . do not impose liability in the treatment of a patient on those individuals or any of the following persons:
* * *
(f) The authoritative governmental unit or units. [Emphasis added.]

" Gross negligence" is " conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." Jennings, 446 Mich. at 136 (quotation marks and citation omitted). " [E]vidence of ordinary negligence does not create a material question of fact concerning gross negligence." Maiden v Rozwood, 461 Mich. 109, 122-123; 597 N.W.2d 817 (1999). Further, " only evidence whose content or substance is admissible can establish the existence of gross negligence . . . ." Id. at 123. " Willful misconduct" is conduct with " intent to harm." Jennings, 446 Mich. at 140-141.

Page 651

Here, plaintiff unconvincingly argues that his pleadings and offers of proof created a question of fact regarding whether defendants committed gross negligence or willful misconduct in their medical response to McLain's health emergency, which abrogates defendants' immunity from suit under MCL 333.20965. As the trial court noted, only two parts of the " volumes" of evidence plaintiff submitted are relevant to showing defendants were responsible for the alleged incorrect location of the breathing tube: (1) the intern's medical progress notes; and (2) plaintiff's unsupported assertions that Williams's testimony was not credible. Neither is sufficient to create a question of fact to negate defendant's immunity from suit.

Again, the medical progress notes were dictated by a medical intern, who, by his own admission, did not [309 Mich.App. 344] have direct knowledge of where the tube was located, and did not know from whom he received the information he recorded--including his notation that the tube was located in McLain's esophagus.[8] As for plaintiff's assertions that Williams's testimony lacked credibility, plaintiff did not present any testimony to oppose Williams's version of events--he simply alleged that it was wrong. Accordingly, the trial court correctly held[9] that the medical progress notes and plaintiff's protestations against Williams's credibility were insufficient to rebut defendants' evidence that Williams did not commit any errors when he attended to McLain.[10]

Because plaintiff did not submit evidence sufficient to create a question of fact as to the " gross negligence" or " willful misconduct" of defendants' actions under the EMSA, the trial court properly granted summary disposition under MCR 2.116(C)(7).


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