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Trowell v. Providence Hospital and Medical Centers, Inc.

Supreme Court of Michigan

July 23, 2018

AUDREY TROWELL, Plaintiff-Appellee,
v.
PROVIDENCE HOSPITAL AND MEDICAL CENTERS, INC., Defendant-Appellant.

          Argued on application for leave to appeal December 6, 2017.

          Chief Justice: Stephen J. Markman, Justices: Brian K. Zahra, Bridget M. McCormack, David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

         Audrey Trowell filed an action in the Wayne Circuit Court against Providence Hospital and Medical Centers, Inc., after she sustained injuries while she was hospitalized. Venue was later transferred to the Oakland Circuit Court by stipulation. The injuries from which Trowell's complaint arose resulted when an aide, acting alone, attempted to assist Trowell to the bathroom and dropped her twice during the process. Trowell did not serve Providence Hospital with a notice of intent to sue and failed to file the lawsuit within the two-year period of limitations generally applicable to medical malpractice actions. Providence Hospital moved for summary disposition under MCR 2.116(C)(7) (statute of limitations) and (C)(8) (failure to state a claim). The court, Colleen A. O'Brien, J., concluded that Trowell's lawsuit sounded in medical malpractice and granted summary disposition in favor of Providence Hospital. Trowell moved for reconsideration and to amend the complaint, and the court denied both motions. Trowell appealed, arguing that the claim was not filed as a medical malpractice action but rather as an ordinary negligence action, that medical expertise was not necessary for a jury to determine whether a hospital aide dropping a patient constituted ordinary negligence, and that summary disposition was premature because discovery had not yet been completed. The Court of Appeals, Murphy, P.J., and Stephens and Boonstra, JJ., reversed and remanded the case, concluding that it was impossible to discern the nature of Trowell's claims without additional factual development. 316 Mich.App. 680 (2016). Providence Hospital applied for leave to appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the application or take other peremptory action. 500 Mich. 965 (2017).

         In a per curiam opinion signed by Chief Justice Markman and Justices Zahra, Bernstein, and Wilder, the Supreme Court, in lieu of granting leave to appeal, held:

         Neither party submitted materials beyond the complaint concerning the nature of the claims at issue in this case, and thus review was properly limited to the complaint alone, regardless of whether Providence Hospital's motion was examined under the standards applicable to (C)(7) motions, (C)(8) motions, or some combination of both standards. The Court of Appeals erred by ordering further discovery to determine the nature of Trowell's claims; the nature of Trowell's claims had to be ascertained from the complaint itself under the facts of the case. With the exception of Trowell's claim regarding the second time the aide dropped her, the allegations in Trowell's complaint sounded in medical malpractice and thus were time-barred because the allegations involved matters of medical judgment in the course of Providence Hospital's professional relationship with Trowell and a jury was not likely to possess the knowledge and experience necessary to reach an informed decision as to those matters. However, Trowell's claim addressing the second drop sounded in ordinary negligence-a jury's common knowledge and experience was sufficient to inform its decision regarding the hospital employee's failure to take corrective action in the face of a known danger that had resulted in patient injury.

         1. MCR 2.116(G)(5) states that when deciding a motion under MCR 2.116(C)(7), a court must consider, together with the pleadings, all documentary evidence then filed in the action or submitted by the parties but that review of a motion for summary disposition under MCR 2.116(C)(8) is limited to the pleadings. In this case, neither party submitted materials beyond the complaint regarding the nature of Trowell's claims and thus review was properly limited to the complaint alone. Therefore, the Court of Appeals erred by ordering further discovery to determine the nature of Trowell's claims.

         2. A claim sounds in medical malpractice if the conduct on which the claim is based occurred in the context of a professional relationship and the claim raises questions of medical judgment beyond the common knowledge and experience of a jury. Trowell's complaint contained the following claims: (1) insufficient staff to assist Trowell; (2) improper physical handling of Trowell, which claim could be further divided into a claim related to the first time Trowell was dropped and a claim related to the second time Trowell was dropped; (3) failure to properly supervise; and (4) failure to properly train. With the exception of the claim regarding the second time Trowell was dropped, these claims all sounded in medical malpractice. Staffing decisions and patient monitoring involve questions of professional medical management. Properly assisting Trowell required consideration of her individualized medical needs. Properly supervising Trowell's care while she was in Providence Hospital was beyond the common knowledge and experience of an ordinary layman. For a jury to determine whether Providence Hospital had properly trained its staff would have required expert testimony to explain the proper methods of moving Trowell and to identify Trowell's individualized needs. Accordingly, all but one of Trowell's claims sounded in medical malpractice and were time-barred.

         3. The first time the aide dropped Trowell sounded in medical malpractice because the context of moving Trowell under the circumstances required medical judgment involving an individualized assessment of Trowell's needs. The second drop sounded in ordinary negligence because a jury relying on common knowledge and experience could determine whether Providence Hospital was negligent for failing to take corrective action in response to a known danger-that is, for failing to call for assistance or to retrieve additional equipment to aid in Trowell's movement after Trowell was dropped and injured the first time. Instead of taking corrective action, the aide attempted the same action that had already failed and had injured Trowell. Trowell's complaint, as it related to the second drop, set forth a claim that a jury relying only on common knowledge and experience could decide, and therefore, the claim sounded in ordinary negligence.

         Reversed and remanded.

          Justice Viviano, joined by Justices McCormack and Clement, concurring, agreed with the majority that the nature of the claims in Trowell's complaint should have been determined on the basis of the complaint alone and that Trowell's complaint contained only one allegation of ordinary negligence. However, Justice Viviano disagreed with the majority's reasoning. The majority based its conclusion on the fact that none of the parties submitted any material to the court in the matter. The problem with this rationale was that it implied that determining the nature of a claim can be converted into a factual issue when a party submits evidence on the matter. Bryant v Oakpointe Villa Nursing Ctr, 471 Mich. 411 (2004), charted a wayward course that permits consideration of facts outside the pleadings to decide what claims a plaintiff has asserted. However, under basic pleading principles, the nature of claims must be determined by the sufficiency of the pleadings, not by the sufficiency of the evidence. A trial court, when faced with a motion alleging untimely claims that also requires the court to determine the nature of the claims, must, under MCR 2.116(C)(8), make the latter determination solely by reference to the complaint. Once the nature of a claim has been established, the court must then determine whether the claim was timely under MCR 2.116(C)(7). When a motion for summary disposition is based on MCR 2.116(C)(7), MCR 2.116(G)(5) directs courts to consider then-filed documentary evidence outside the pleadings-affidavits, depositions, admissions, etc. The majority reads a prohibition into the rule-according to the majority, a court is prohibited from ordering further factual development to decide the motion. But MCR 2.116(G)(5) is a rule of inclusion, not exclusion. Nothing in the rule establishes that a court is prohibited from considering any other evidence. The majority's approach allows the factual record in a case to crystallize even when discovery has not yet been completed. In fact, the Supreme Court has taken the opposite tack in past cases dealing with motions subject to MCR 2.116(G)(5). In addition, summary disposition is often premature without sufficient factual development, and dismissal without further factual development when a question of fact related to recovery exists may be inappropriate. In addition, MCR 2.116(I)(3) authorizes an immediate trial on disputed issues of fact when a motion for summary disposition is based on MCR 2.116(C)(7), suggesting that MCR 2.116(G)(5) is not a prohibition on evidentiary development. In this case, discovery was incomplete-Trowell had not yet even deposed the aide who dropped her, and the aide would have likely been the central witness. The majority's outcome would prevent a court from considering the aide's testimony simply because Providence Hospital successfully filed its motion for summary disposition before the conclusion of discovery. When determining the nature of a complaint, review is properly limited to the complaint alone.

         BEFORE THE ENTIRE BENCH

          OPINION

          PER CURIAM.

         At issue in this case is whether plaintiff's claims sound in medical malpractice or ordinary negligence. If her claims sound in medical malpractice, then they are barred by the two-year statute of limitations applicable to medical malpractice actions and defendant is entitled to summary disposition under MCR 2.116(C)(7). If her claims sound in ordinary negligence, then they are timely. The Court of Appeals held that it could not "conclude solely on the basis of the allegations in the complaint . . . that plaintiff's claims sounded in medical malpractice."[1] It then remanded for an evidentiary hearing to determine whether plaintiff's claims sounded in medical malpractice, ordinary negligence, or both. We disagree with this approach. We hold that under the facts of this case, in which the only material submitted to the trial court was plaintiff's complaint, the remand was improper and in determining the nature of plaintiff's claims, the lower courts' review was limited to the complaint alone. A proper review of the allegations in plaintiff's complaint leads us to conclude that although the complaint includes some claims of medical malpractice, it also contains one claim of ordinary negligence. Accordingly, we reverse the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.

         I. FACTS AND PROCEDURAL HISTORY

         Plaintiff brought the present lawsuit on February 11, 2014, after sustaining injuries at defendant hospital. Three years earlier, on February 11, 2011, plaintiff was admitted to the intensive care unit (ICU) at defendant hospital after an aneurysm caused her to suffer a stroke and subsequently go into cardiac arrest. While in the ICU, she needed assistance to use the restroom. Her complaint alleges that an aide named Dana, acting alone, tried to move her to the bathroom and dropped plaintiff twice during the process. Specifically, the complaint alleges:

11. Although "Dana" was tasked with assisting Plaintiff with using the bathroom, she dropped Plaintiff, which caused Plaintiff to hit her head on her wheelchair.
12. "Dana" attempted to assist Plaintiff again after dropping her, but instead she dropped Plaintiff a second time.
13. As a result of her falls, Plaintiff suffered a torn rotator cuff which has required multiple surgeries, and treatment continues into the present time.
14. Further, an MRI revealed that Plaintiff had suffered bleeding on the brain as a result of being dropped by Defendant's nurse, "Dana."
15. Defendant hospital was negligent in one or more of the following particulars, departing from the standard of care in the community:
a. Failure to ensure the safety of Plaintiff while in Defendant's hospital;
b. Failure to properly supervise the care of Plaintiff while in Defendant's hospital;
c. Failure to provide an adequate number of nurses to assist Plaintiff while in Defendant's hospital;
d. Failure to properly train "Dana" and other nurses in how to properly handle patients such as Plaintiff;
e. Failure to exercise proper care to prevent Plaintiff from being injured while in Defendant's hospital[.]
16. Defendant hospital was negligent through its agents, employees, and staff in failing to ensure the safety of Plaintiff.
17. The negligence of Defendant and its agents, employees and staff was the proximate [cause] of Plaintiff's damages set forth below.

         On January 9, 2015, after the parties had the opportunity to engage in more than 10 months of discovery but before discovery closed, defendant moved for summary disposition under MCR 2.116(C)(7) and (C)(8), arguing that plaintiff's claims sound in medical malpractice and thus are barred by the two-year statute of limitations applicable to medical malpractice claims.[2] That period is tolled when a plaintiff serves the defendant with a notice of intent to sue, [3] which is required by MCL 600.2912b(1). But in this case, plaintiff never served a notice of intent to sue, and consequently the limitations period was never tolled.[4] Thus, according to defendant, the complaint was untimely because it was filed more than two years after the claims accrued. In response, plaintiff argued that her complaint does not allege medical malpractice claims, but instead alleges ordinary negligence claims.

         The trial court granted summary disposition to defendant on April 8, 2015, holding that plaintiff's claims sound in medical malpractice, not ordinary negligence, because the claims involve a professional relationship between plaintiff and defendant and concern questions of defendant's medical judgment.[5]

         The Court of Appeals reversed and remanded.[6] Its analysis was based on the distinctions between medical malpractice and ordinary negligence claims set forth by this Court in Bryant v Oakpointe Villa Nursing Ctr, Inc.[7] In applying Bryant, the Court of Appeals noted that it was "confined to examining the allegations in plaintiff's complaint," but the "complaint is fairly vague and lacks elaboration in terms of describing and factually supporting the particular theories of negligence it sets forth, ostensibly because plaintiff was short on information concerning details of the incident . . . ."[8] The Court observed that, based on the language of plaintiff's complaint, all of plaintiff's allegations could involve matters of medical judgment in the course of a professional relationship with defendant and thus constitute medical malpractice claims.[9]But the Court thought that plaintiff's allegations could also be consistent with factual scenarios involving ordinary negligence. The Court determined that, without additional evidence, it was impossible to discern the nature of plaintiff's claims.[10] Accordingly, the Court of Appeals reversed the trial court's order granting summary disposition to defendant and remanded to the trial court for further factual development of the nature of plaintiff's claims as pleaded in her complaint.[11]

         Citing Bryant, we ordered oral argument on defendant's application for leave to appeal, directing the parties to address "whether the claims in the plaintiff's complaint sound in ordinary negligence or medical malpractice[.]"[12]

         II. STANDARD OF REVIEW

         Whether a claim sounds in ordinary negligence or medical malpractice is a question of law that is reviewed de novo.[13]

         III. ANALYSIS

         A medical malpractice claim is sometimes difficult to distinguish from an ordinary negligence claim.[14] But the distinction is often critical.[15] In this case, defendant contended in its motion for summary disposition brought under MCR 2.116(C)(7) and (C)(8) that while plaintiff framed her claims as a "general negligence action," they "actually sound in medical malpractice" and are barred by the applicable statute of limitations. Plaintiff has argued that her claims are for ordinary negligence.

         The Court of Appeals concluded in this case that "the allegations in the complaint did not lend themselves to a definitive determination that the negligence claims in plaintiff's suit necessarily sounded in medical malpractice," and the panel therefore remanded to the trial court for further proceedings.[16] Defendant disagrees with this approach, arguing that because it moved for summary disposition under MCR 2.116(C)(7) and (C)(8), the court's review of "allegations in [plaintiff's] Complaint" was restricted "to the four corners of said Complaint." Implicit in this argument is the premise that a remand to the trial court is unnecessary because that court was limited to reviewing the complaint alone when deciding defendant's motion for summary disposition.

         A court is permitted to consider materials outside the pleadings when deciding a motion under MCR 2.116(C)(7).[17] In contrast, "[o]nly the pleadings may be considered when the motion [for summary disposition] is based on subrule (C)(8) . . . ."[18] We need not decide in this case whether the trial court was required to look only to the complaint in reviewing defendant's motion or whether it could have looked to other submitted evidence in ascertaining the nature of plaintiff's claims. This is because, under MCR 2.116(G)(5), "[t]he affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1)-(7) or (10)."[19] In this case, neither party submitted materials beyond the complaint concerning the nature of the claims, and thus review is properly limited to the complaint alone, regardless of whether defendant's motion is examined under the standards applicable to (C)(7) motions, (C)(8) motions, or some combination of both standards.[20]

         The Court of Appeals therefore erred by ordering further discovery to determine the nature of plaintiff's claims, which must be ascertained from the complaint itself under the facts of this case. As with any such review of a complaint, "[a]ll well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant."[21] And we disregard the labels given to the claims and instead read the complaint as a whole, seeking the gravamen of the claims.[22]

         IV. APPLICATION

         The question remains as to what theory (or theories) plaintiff's complaint actually sounds in. The Court of Appeals identified two claims in plaintiff's complaint-"(1) the use of one nurse's aide to assist plaintiff and not two aides or nurses and (2) the manner in which the nurse's aide physically handled plaintiff when providing assistance, regardless of the number of hospital personnel involved."[23] Regarding the second claim, the Court of Appeals further distinguished the first time the aide dropped plaintiff from the second time the aide dropped plaintiff. The Court explained that the second drop was potentially distinguishable because under Bryant, the failure to take corrective action once a risk is evident does not implicate medical judgment.[24] The Court of Appeals remanded the two claims for further factual development to determine whether they sound in ordinary negligence or medical malpractice. In addition to the claims identified by the Court of Appeals, two other claims are apparent in plaintiff's complaint: the "failure to properly supervise" and the "failure to properly train."[25] We will address each claim in turn.

         With regard to the second drop of plaintiff, our Court considered an almost identical situation in Bryant. In that case, the hospital staff found the plaintiff tangled in her bedding.[26] After discovering this dangerous condition, the staff failed to take corrective action to prevent the condition from recurring.[27] We held that this failure to take corrective action did not implicate medical judgment.[28] We explained:

This claim sounds in ordinary negligence. No expert testimony is necessary to determine 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.[29]

         Our Court also offered the following hypothetical scenario:

Suppose, for example, that two CENAs [certified evaluated nursing assistants] 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, they notify a supervising nurse of the problem. The nurse, then, does nothing at all to rectify the problem, and the resident drowns while taking a bath the next day.[30]

         In such a scenario, we explained, a jury relying on common knowledge and experience could determine whether the defendant was negligent for failing to take corrective action in response to a known danger.[31] Thus, a claim based upon such a scenario sounds in ordinary negligence rather than medical malpractice.

         Plaintiff's claim in this case regarding the second drop is analogous to the situation in Bryant. As in Bryant, the nurse's aide in this case discovered a danger when she attempted to move plaintiff and dropped her. After discovering this danger, the aide failed to take corrective action, such as calling for assistance or retrieving additional equipment to aid in moving plaintiff. Instead, the aide attempted the same action that had already failed and caused plaintiff injury-she tried again to move plaintiff unassisted. Like the situation described in Bryant, the aide in this case "recognize[d] that the resident's medical condition is such that [she] is likely to [fall] again, "[32] but the aide nevertheless failed to take corrective action. Plaintiff's complaint with regard to the second drop, viewed "in a light most favorable to the nonmovant, "[33] sets forth a claim that a jury "relying only on common knowledge and experience"[34] could decide.

         As for plaintiff's remaining claims, however, each sounds in medical malpractice. When we considered similar claims, both in Bryant and in Dorris v Detroit Osteopathic Hosp Corp, [35] on which Bryant relied, we determined that such claims implicate medical judgment. Related to the failure to use more than one person to move plaintiff, Dorris considered a claim of inadequate staffing and held that "these allegations concerning staffing decisions and patient monitoring involve questions of professional medical management and not issues of ordinary negligence that can be judged by the common knowledge and experience of a jury."[36] Similarly, in this case, plaintiff's claim that defendant failed "to provide an adequate number of nurses to assist Plaintiff while in Defendant's hospital" implicated medical judgment and thus sounded in medical malpractice.

         Plaintiff's failure-to-properly-assist claim is analogous to the "failure to inspect" claim considered in Bryant. In Bryant, we held that the failure to recognize the risks of asphyxiation associated with a patient's bedding implicates medical judgment because it requires an individualized assessment of the patient's medical needs.[37] In the same way, in this case, we hold that the claim that the aide failed to properly assist plaintiff while she was in the ICU implicates medical judgment because it requires consideration of plaintiff's individualized medical needs.

         Regarding plaintiff's allegation in the complaint that defendant failed "to properly supervise the care of Plaintiff while in Defendant's hospital," Dorris considered a similar claim in the context of a psychiatric ward and held that "[t]he ordinary layman does not know the type of supervision or monitoring that is required for psychiatric patients in a psychiatric ward."[38] Similarly, in this case, a jury could not determine, relying merely on "common knowledge and experience, "[39] what would constitute proper supervision for a patient like plaintiff, who was admitted to the ICU after suffering an aneurysm, a stroke, and cardiac arrest.

         Finally, regarding plaintiff's allegation in the complaint that defendant failed "to properly train 'Dana' and other nurses in how to properly handle patients such as Plaintiff," Bryant considered a claim of failure to train hospital staff on how to avoid asphyxiation from improperly situated bedding.[40] We analogized to the failure-to-supervise claim in Dorris and held that assessing risks such as asphyxiation from bedding for purposes of proper supervision requires specialized knowledge of hospital bedding arrangements and of a patient's individual needs.[41] Thus, we held that the claim implicated medical judgment.[42] In this case, the same principles apply. To determine whether the hospital provided proper supervision in the ICU for a patient such as plaintiff, a jury would need to hear expert testimony regarding proper methods of moving a patient, as well as the patient's individualized needs. Thus, the claim implicates medical judgment and sounds in medical malpractice.

         Having reached these conclusions, we again note, as we did in Bryant, that "in future cases of this nature, in which the line between ordinary negligence and medical malpractice is not easily distinguishable, plaintiffs are advised as a matter of prudence to file their claims alternatively as medical malpractice and ordinary negligence within the applicable period of limitations."[43]

         V. CONCLUSION

         Under these facts, when the only material submitted to the court was plaintiff's complaint, the Court of Appeals erred by remanding this case for an evidentiary hearing to determine the nature of plaintiff's claims. When plaintiff's complaint is read properly, she has stated only one claim of ordinary negligence-the claim regarding the second drop. As stated in the complaint, the other claims sound in medical malpractice, and thus those other claims are time-barred. ...


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