Bryant v. Oakpointe Villa Nursing Centre, Docket No. 121723

CourtSupreme Court of Michigan
Citation471 Mich. 411,684 N.W.2d 864
Docket NumberDocket No. 121724. Calendar No. 2.,Docket No. 121723
PartiesDenise BRYANT, Personal Representative of the Estate of Catherine Hunt, Deceased, Plaintiff-Appellee, v. OAKPOINTE VILLA NURSING CENTRE, Defendant-Appellant.
Decision Date30 July 2004

Mark Granzotto, P.C. (by Mark Granzotto), Royal Oak, MI, and Olsman, Mueller & James, P.C. (by Jules B. Olsman), Berkley, MI, for the plaintiff.

Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman), Detroit, MI and Carol Holmes, P.C. (by Carol Holmes), Lake Orion, MI, for the defendant.



In this case, plaintiff, Denise Bryant, personal representative of the estate of her deceased aunt, Catherine Hunt, alleges that 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 N.W.2d 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.


Plaintiff's decedent, Catherine Hunt, was a resident of Oakpointe. She suffered from multi-infarct dementia1 and diabetes, had suffered several strokes, and required twenty-four-hour-a-day care for all her needs, including locomotion, dressing, eating, toileting, and bathing. Hunt's condition impaired her judgment and reasoning ability and, in turn, caused cerebral atrophy. 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, 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 herself 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 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 than ordinary negligence. In August 1998, Judge Pamela Harwood ruled that plaintiff's complaint sounded in ordinary negligence and allowed the case to proceed. 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 through" defendant's employees generally; second, negligent infliction of emotional distress; and third, gross negligence by defendant's employees 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.

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, agreed with 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 M.C.L. § 600.2912b and, in February 2001, refiled her case, filing a second amended complaint alleging medical malpractice. 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 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 with defendant's appeal from his June 2001 decision. 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 N.W.2d 711 (2000), would require its dismissal with prejudice. Defendant appealed the Court of Appeals decision that plaintiff's case sounded in ordinary negligence, and we granted leave to appeal in this case and in Lawrence v. Battle Creek Health Systems, 468 Mich. 944, 664 N.W.2d 222 (2003), ordering that the two cases be argued and submitted together.7


In determining whether the nature of a claim is ordinary negligence or medical malpractice, as well as whether such claim is barred because of the statute of limitations, a court does so under MCR 2.116(C)(7). We review such claims de novo. Fane v. Detroit Library Comm., 465 Mich. 68, 74, 631 N.W.2d 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 unless affidavits or other appropriate documents specifically contradict it. Fane, supra;

see also MCR 2.116(G)(5)-(6).


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 M.C.L. § 600.5838a refers to "the medical malpractice of ... an employee or agent of a licensed health facility or agency who is engaging in or...

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