TOD MCLAIN, Personal Representative of the ESTATE OF TRACY MCLAIN, Plaintiff-Appellant,
LANSING FIRE DEPARTMENT, CITY OF LANSING, and JEFFREY WILLIAMS, Defendants-Appellees, and MICHAEL DEMPS, Defendant
Ingham Circuit Court. LC No. 11-000859-NH.
For MCLAIN TOD PERSONAL REPRESENTATIVE, PLAINTIFF-APPELLANT: COURTNEY E MORGAN JR, DEARBORN, MI.
For CITY OF LANSING FIRE DEPARTMENT, PLAINTIFF-APPELLEE: KAREN E BEACH, BLOOMFIELD HILLS, MI.
Before: SAAD, P.J., and OWENS and K. F. KELLY, JJ.
[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.
[309 Mich.App. 337] I. FACTS AND PROCEDURAL HISTORY
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 alleged placement of the breathing tube in her esophagus instead of her trachea.
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.,
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. 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 ...