Groesbeck v. Henry Ford Health Sys.

• Decision Date: 26 February 2013
• Docket Number: No. 307069,307069
• Parties: HARVEY GROESBECK, guardian of LORETTA GRoESBECK, a protected person, Plaintiff-Appellee, v. HENRY FORD HEALTH SYSTEM, d/b/a HENRY FORD BI-COUNTY HOSPITAL, d/b/a, HENRY FORD MACOMB HOSPITAL, d/b/a DETROIT OSTEOPATHIC HOSPITAL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

HARVEY GROESBECK, guardian of LORETTA GRoESBECK, a protected person, Plaintiff-Appellee,

v.HENRY FORD HEALTH SYSTEM, d/b/a HENRY FORD BI-COUNTY HOSPITAL, d/b/a,HENRY FORD MACOMB HOSPITAL, d/b/a DETROIT OSTEOPATHIC HOSPITAL, Defendant-Appellant.

No. 307069

STATE OF MICHIGAN COURT OF APPEALS

February 26, 2013

UNPUBLISHED

Macomb Circuit Court

LC No. 2009-003523-NO

Before: HOEKSTRA, P.J., and K. F. KELLY and BECKERING, JJ.

BECKERING, J. (concurring in part and dissenting in part).

I concur in part and dissent in part. At the heart of this appeal is whether plaintiff has stated claims that sound in ordinary or medical negligence associated with 86-year-old Loretta Groesbeck's fall while undergoing physical rehabilitation at defendant's facility. Plaintiff claims that physical therapist Esther Karunakar acted negligently in several distinct ways: (1) by allowing Groesbeck to walk for a gait assessment despite her present physical condition, (2) by failing to secure or hold Groesbeck to prevent her from falling as she walked, and (3) by failing to catch or assist Groesbeck when she became dizzy and fell. The majority concludes that plaintiff's claim that Karunakar negligently allowed Groesbeck to walk for a gait assessment sounds in medical malpractice. I agree. The majority further concludes that plaintiff's claims that Karunakar negligently failed to secure or hold Groesbeck and to catch or assist Groesbeck when she became dizzy and fell likewise sound in medical malpractice. I respectfully disagree. Resolution of the issue of whether Karunakar acted reasonably when she failed to hold Groesbeck securely and allowed her to fall onto the floor is within an ordinary juror's common knowledge and experience and, thus, sounds in ordinary negligence.

It is well established that "[t]he fact that an employee of a licensed health care facility was engaging in medical care at the time the alleged negligence occurred means that the plaintiff's claim may possibly sound in medical malpractice; it does not mean that the plaintiff's claim certainly sounds in medical malpractice." Bryant v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411, 421; 684 NW2d 864 (2004). To determine whether a claim sounds in ordinary negligence or medical malpractice, a court must consider two questions: "(1) whether the claimpertains to an action that occurred within the course of a professional relationship and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience." Id. at 422. If both questions are answered affirmatively, then the claim sounds in medical malpractice. Id. "If the reasonableness of the health care professionals' action can be evaluated by lay jurors, on the basis of their common knowledge and experience, it is ordinary negligence." Id. at 423.

In Bryant, our Supreme Court concluded that a single count of ordinary negligence can contain both ordinary-negligence and medical-malpractice claims. See id. at 414, 417-418, 424-432. On the day before the decedent's injury in Bryant, nurses discovered the decedent, who had no control over her locomotive skills and, therefore, was at risk for suffocation by positional asphyxia, lying in her bed very close to the bed rails and tangled in her restraining vest, gown, and bed sheets. Id. at 415-416. The nurses untangled the decedent and attempted to position bed wedges onto the decedent's bed; however, the bed wedges would not work properly, so the nurses informed their supervisor. Id. at 416. The next day, the decedent slipped between the bedrails such that the lower half of her body was on the floor and her neck was wedged between the rail and the mattress, which prevented her from breathing and ultimately caused her death by positional asphyxia. Id. at 417. In a single count of ordinary negligence, the plaintiff alleged that the defendant was negligent in four distinct ways:

(1) by failing to provide "an accident-free environment" for [the decedent]; (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 [the decedent] 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." [Id. at 414.]

The Court first concluded that the plaintiff's accident-free-environment claim sounded neither in ordinary negligence nor in medical malpractice but, rather, in strict liability. Id. at 425. The Court then concluded that plaintiff's claims for failures to train and inspect sounded in medical malpractice because they required a fact finder to rely on expert testimony where both claims involved a risk assessment of positional asphyxiation posed by bed rails and other restraints, which is beyond the realm of common knowledge. Id. at 428-430. However, the Court concluded that the failure-to-take-corrective-measures claim sounded in ordinary negligence. Id. at 430. The Court explained,

No expert testimony is required here in order to determine whether defendant was negligent in failing to respond after its agents noticed that [the decedent] was at risk of asphyxiation. Professional judgment might be implicated if plaintiff alleged that defendant responded inadequately, but, given the substance of plaintiff's allegation in this case, the fact-finder need only determine whether any corrective action to reduce the risk of recurrence was taken after defendant's agents noticed that [the decedent] was in peril. [Id. at 431.]

The majority discusses Bryant at length but, in my view, fails to appreciate that plaintiff's single count of ordinary negligence can and does contain both ordinary-negligence and medical-malpractice claims. More specifically, the majority opines that

plaintiff hastily notes in his appellate brief that the "crux of this lawsuit" is that Karunakar "failed to carefully hold Ms. Groesbeck to prevent her from falling." However, a clear reading of the complaint belies that notion. Plaintiff plainly takes issue with Karunaker's decision to conduct the gait assessment in the first place.

Although the majority is correct that a clear reading of plaintiff's complaint demonstrates that plaintiff takes issue with Karunaker's decision to conduct the gait assessment, which I conclude as the majority does is a claim sounding in medical malpractice, plaintiff's allegation that Karunakar negligently decided to conduct the gait assessment does not make plaintiff's ordinary-negligence count sound entirely in medical malpractice. See id. at 414, 417-418, 424-432. Rather, plaintiff's claims that Karunakar failed to hold Groesbeck securely and allowed her to fall onto the floor must be evaluated separately from plaintiff's claim regarding Karunakar's decision to conduct the gait assessment to determine whether it sounds in medical malpractice or ordinary negligence. See id. at 424-425.

In evaluating plaintiff's claims that Karunakar failed to hold Groesbeck securely and allowed her to fall onto the floor, I find instructive this Court's opinion in Sheridan v West Bloomfield Nursing & Convalescent Center, Inc, unpublished opinion per curiam of the Court of Appeals, issued March 6, 2007 (Docket No. 272205). Although Sheridan is unpublished and, thus, not binding on this Court, MCR 7.215(C)(1), I consider it to have great persuasive value given its factual similarity to this case, and I would apply this Court's reasoning in Sheridan when evaluating plaintiff's claims, see Paris Meadows, LLC v City of Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d 133 (2010). In Sheridan, the plaintiff alleged that the defendants were negligent "when two nurse assistants dropped plaintiff's decedent while moving her from her bed to a wheel chair using a 'gait belt."' Sheridan, unpub op at 2. The plaintiff did not challenge the defendants' decision to move the decedent, the decision to use a gait belt, or the manner in which the gait belt was fastened to the...