Trowell v. Providence Hosp. & Med. Ctrs., Inc., Docket No. 327525.

• Citation: 893 N.W.2d 112,316 Mich.App. 680
• Decision Date: 16 August 2016
• Docket Number: Docket No. 327525.
• Parties: TROWELL v. PROVIDENCE HOSPITAL AND MEDICAL CENTERS, INC.
• Court: Court of Appeal of Michigan (US)

316 Mich.App. 680

893 N.W.2d 112

TROWELL

v.PROVIDENCE HOSPITAL AND MEDICAL CENTERS, INC.

Docket No. 327525.

Court of Appeals of Michigan.

Submitted Aug. 3, 2016, at Detroit.

Decided Aug. 16, 2016, at 9:05 a.m.

Carla D. Aikens, PC (by Carla D. Aikens ), for Audrey Trowell.

Grier, Copeland & Williams, PC (by Wilson A. Copeland, II, Detroit, and Rhonda Y. Reid Williams), for Providence Hospital and Medical Centers, Inc.

Before: MURPHY, P.J., and STEPHENS and BOONSTRA, JJ.

MURPHY, P.J.

Plaintiff, Audrey Trowell, appeals as of right the trial court's order granting summary disposition in favor of defendant, Providence Hospital and Medical Centers, Inc. (the hospital), in this dispute that, at this juncture, concerns whether plaintiff's complaint sounded in medical malpractice or ordinary negligence. The substance of the case concerns an incident in which a patient-care technician employed by the hospital allegedly "dropped" plaintiff twice while assisting and escorting her to the bathroom, resulting in various injuries. There is no dispute that plaintiff did not take the mandatory procedural steps associated with a medical malpractice action, such as serving a notice of intent, MCL 600.2912b, and procuring and filing an affidavit of merit, MCL 600.2912d. Additionally, the lawsuit was filed beyond the two-year period of limitations generally applicable to medical malpractice actions, MCL 600.5838a(2) ; MCL 600. 5805(1) and (6). Solely on the basis of the allegations in plaintiff's complaint, as there was no documentary evidence presented in regard to the hospital's motion for summary disposition, the trial court ruled that plaintiff's lawsuit sounded in medical malpractice and dismissed the action in its entirety. The trial court denied plaintiff's motion for reconsideration and her motion to amend the complaint. Because 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, we reverse and remand for further proceedings.

I. BACKGROUND

On February 11, 2014, plaintiff filed a single-count complaint against the hospital in the Wayne Circuit Court; however, pursuant to a stipulated order, venue was transferred to the Oakland Circuit Court. In the complaint, under a count titled "Medical Negligence," plaintiff alleged that on February 11, 2011, she was admitted to the hospital after having suffered a stroke

caused by an aneurysm. Plaintiff asserted that she subsequently went into cardiac arrest and that she was placed in the hospital's intensive care unit (ICU). Plaintiff alleged in the complaint that she had been advised that two nurses needed to assist her whenever she went to the bathroom, yet "on several occasions" the hospital only employed one nurse to assist plaintiff to the bathroom. She additionally contended that, on one particular occasion, an unassisted female nurse's aide¹ was tasked with helping plaintiff to the bathroom and that she "dropped" plaintiff, causing her to hit her head on a wheelchair. According to the complaint, when the nurse's aide attempted to assist plaintiff after dropping her, the aide " dropped [p]laintiff a second time." Plaintiff alleged that as a result of the falls, she suffered a torn rotator cuff, which required multiple surgeries and ongoing treatment, as well as "bleeding on the brain

."

Plaintiff alleged that the hospital "had a duty to ensure that [she] received proper assistance while a patient, including assistance ambulating to and from the bathroom while she was in the ICU." The complaint further set forth the following allegations:

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 [the nurse's aide] and other[s] ... 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[.]

Plaintiff additionally alleged that the "hospital was negligent through its agents, employees, and staff in failing to ensure the safety of" plaintiff and that the negligence of the hospital "and its agents, employees and staff was the proximate [cause] of" plaintiff's alleged damages. In her prayer for relief, plaintiff sought a judgment awarding her economic damages for lost wages and earning capacity, noneconomic damages in the amount of $2.5 million, and costs.

The hospital filed an answer to the complaint and affirmative defenses, indicating, in part, that plaintiff's suit was time-barred and that she had failed to serve a notice of intent and file an affidavit of merit as required in medical malpractice actions. Subsequently, the hospital filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and (8), arguing that plaintiff's complaint sounded in medical malpractice and not ordinary negligence; that the suit was barred by the two-year period of limitations applicable to medical malpractice actions; that plaintiff had failed to serve a notice of intent, which meant that no tolling of the limitations period had occurred; and that plaintiff had failed to file an affidavit of merit. The hospital maintained that plaintiff's suit sounded in medical malpractice because a professional relationship had existed between plaintiff and the hospital and because the alleged acts of negligence raised questions of medical judgment that were not within the common knowledge and experience of laypersons. The latter proposition forms the heart of this appeal.

In response to the hospital's motion for summary disposition, plaintiff contended that the issues concerning the two-year period of limitations, a notice of intent, and an affidavit of merit were all irrelevant because plaintiff's "claim was not filed as a medical malpractice action." Plaintiff argued that medical expertise was not necessary "in order for a jury to decide whether a[n] [aide] dropping someone is negligence" and that a juror would be able to discern, absent medical testimony, that plaintiff had not been handled properly. Plaintiff further maintained that her suit and the alleged breach of duty did not entail the aide's administration of any medical care or treatment or the exercise of medical judgment, that the nurse's aide was simply assisting plaintiff in using the bathroom, that being dropped by an aide who was unassisted constituted clear negligence, and that the issue of the hospital's alleged failure to prevent plaintiff's injury could be answered without any specialized knowledge. Finally, plaintiff argued that summary disposition was premature because discovery had not yet been completed.²

After reviewing the factual and procedural history of the case and reciting the two-part test enunciated in Bryant v. Oakpointe Villa Nursing Ctr., Inc., 471 Mich. 411, 422, 684 N.W.2d 864 (2004),³ which test is employed in determining whether a claim sounds in medical malpractice or ordinary negligence, the trial court ruled as follows at the hearing on the hospital's summary disposition motion:

Here, there's no dispute that the professional relationship requirement is met. At issue is the second element. The [c]ourt finds that plaintiff's allegations sound in medical malpractice.... Furthermore, 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.... Therefore, [the hospital's] motion for summary disposition is granted.

On April 8, 2015, an order was entered granting the hospital's motion for summary disposition for the reasons stated on the record. Plaintiff then filed a motion for reconsideration and a motion to amend the complaint. On May 4, 2015, the trial court entered two orders. In the first order, the trial court denied plaintiff's motion for reconsideration, concluding that plaintiff had failed to demonstrate palpable error and had merely presented the same issues on which the court had previously ruled. In the second order, the trial court indicated that plaintiff had failed to attach to her motion a proposed amended complaint, depriving the court of the opportunity to engage in meaningful review of her request for leave to file an amended complaint.

The trial court directed plaintiff to refile her motion to amend with an attached proposed amended complaint. Plaintiff did so, and her proposed amended complaint again contained a single count, but it was retitled "Negligence." Plaintiff essentially repeated most of the allegations found in the original complaint. Paragraph 15 of the proposed amended complaint, which paragraph in the original complaint we quoted earlier, now simply asserted negligence on the part of the hospital for departing from the standard of care by failing to ensure plaintiff's safety while in the hospital, thereby retaining only Subparagraph (a) from the original Paragraph 15.⁴ Plaintiff did repeat the earlier allegations that the "hospital was negligent through its agents, employees, and staff in failing to ensure the safety of" plaintiff and that the negligence of the hospital "and its agents, employees and staff was the proximate [cause] of" plaintiff's alleged damages.

On May 26, 2015, the trial court entered an order denying plaintiff's renewed motion to amend her complaint, ruling that the motion was "essentially a motion for reconsideration," which had already been denied, that the proposed amended complaint still sounded in medical malpractice, and that, therefore, any amendment would be futile. Plaintiff appeals as of right.

II. ANALYSIS

A. OVERVIEW OF APPELLATE...