Meyers v. Rieck

• Citation: 509 Mich. 460,983 N.W.2d 747
• Decision Date: 07 July 2022
• Docket Number: 162094
• Parties: Lesley MEYERS, Personal Representative of the Estate of Samuel Corrado, Plaintiff-Appellant, v. Karen RIECK, Radi Gerbi, R.N., Jessica Johnson, L.P.N., Beaumont Nursing Home Services, Inc., and Pinehurst East, Inc., Defendants, and Shelby Nursing Center Joint Venture, doing business as Shelby Nursing Center, Defendant-Appellee.
• Court: Supreme Court of Michigan

509 Mich. 460

983 N.W.2d 747

Lesley MEYERS, Personal Representative of the Estate of Samuel Corrado, Plaintiff-Appellant,

v. Karen RIECK, Radi Gerbi, R.N., Jessica Johnson, L.P.N., Beaumont Nursing Home Services, Inc., and Pinehurst East, Inc., Defendants,andShelby Nursing Center Joint Venture, doing business as Shelby Nursing Center, Defendant-Appellee.

No. 162094

Supreme Court of Michigan.

Argued on application for leave to appeal January 12, 2022

Decided July 7, 2022

Mark Granzotto, PC, Royal Oak (by Mark Granzotto ) and The Sam Bernstein Law Firm, PLLC (by Stanley J. Feldman ), for the Estate of Samuel Corrado.

Abbott Nicholson, PC (by Alyssa C. Kennedy and Lori A. Barker, Troy), for Shelby Nursing Center Joint Venture, doing business as Shelby Nursing Center.

John M. Malone, for the Michigan Association for Justice, amicus curiae.

Miller, Canfield, Paddock & Stone, PLC (by Paul D. Hudson, Kalamazoo, and Michael C. Simoni ), for the Michigan Manufacturers Association, amicus curiae.

Collins Einhorn Farrell PC, Southfield (by Michael J. Cook ), for Michigan Defense Trial Counsel, Inc., amicus curiae.

BEFORE THE ENTIRE BENCH (except Bernstein, J.)

Viviano, J. Lesley Meyers brings this action on behalf of the estate of Samuel Corrado, claiming that defendants were negligent and committed medical malpractice in their treatment of Corrado, who died while a resident at defendant Shelby Nursing Center. In the proceedings below, plaintiff moved to amend its complaint to add allegations concerning one of defendant's standing orders, which established a procedure for treatment of patients with Corrado's condition. Plaintiff's new allegations are that defendant's nurse violated the standing order and that this violation gives rise to an ordinary-negligence claim.

We hold that plaintiff's new allegations sound in medical malpractice. We further hold that the standing order cannot establish the standard of care for a medical malpractice action. Therefore, to the extent that the new allegations raise a claim based solely on the violation of the standing order, that claim must fail. However, to the extent that the new factual allegations concerning the standing order are relevant to any other claim in plaintiff's original complaint, the standing order may be used as evidence of the standard of care if it is otherwise admissible and the jury is instructed that the order does not itself constitute the standard of care.

I. FACTS

Corrado suffered from dysphagia, which is a medical condition that makes it difficult to swallow. Because this condition impeded his ability to eat, Corrado's doctor ordered a feeding tube. After placement of the tube, Corrado was admitted to defendant nursing home on March 20, 2014. His recovery was progressing, and he was scheduled for discharge on June 17, 2014.

The nursing home had a standing order on the treatment of patients with nausea.¹ The order stated that if the patient has "[n]ausea with or without vomiting," staff were to:

Check for fecal impaction. If impacted remove impaction manually and give fleets enema. If nausea and/or vomiting persist, give Tigan 100 mg suppository or 100 mg i.m. one dose only.... Notify physician next office day for a single episode.

Report immediately to physician if: ... > 1 episode within 24 hours.

On June 2, 2014, at about 5:00 p.m., defendant Radi Gerbi, a registered nurse working for Shelby Nursing Center, arrived in Corrado's room to administer medication and a feeding tube.² At that time, he noticed that Corrado had vomited, which Corrado confirmed. Consequently, he did not administer the medication or feeding tube but did check Corrado's vitals, monitor him for a period, and notify other nurses. About 90 minutes later, Gerbi heard Corrado calling for help. Gerbi entered Corrado's room and found him hunched over a small tub, in which Corrado had just vomited. At this point, Gerbi administered Tigan (a medication used to treat nausea and vomiting) pursuant to the standing order and monitored Corrado. About 20 to 30 minutes after the second vomiting episode, Gerbi called a physician pursuant to the standing order. He could not reach the physician so he notified his supervisor and then took his 30-minute break.

In the meantime, Meyers (who is Corrado's daughter) had been in contact with Corrado throughout the day. After unsuccessfully attempting to have someone sent to Corrado's room, she went to the nursing facility herself, arriving at around 6:45 p.m., after the Tigan had been administered. Meyers found Corrado violently shaking and struggling to breathe. Emergency personnel arrived in Corrado's room about ten minutes later and rushed him to the hospital, where he died from hypoxia due to aspiration.

Plaintiff brought the present lawsuit against the nursing home, Gerbi, and other defendants on behalf of Corrado's estate. The complaint contains ordinary-negligence claims and medical malpractice claims encompassing all the events that occurred and various alleged breaches of the relevant standards of care. In particular, the complaint alleged that Gerbi and other defendants failed to adequately monitor Corrado and to provide emergency care, including notifying Corrado's physician concerning his status. During discovery, plaintiff learned about the standing order and moved to amend the complaint to include allegations concerning the standing order and "to add as part of its claim for ordinary negligence the fact that Nurse Gerbi failed to comply with [the] standing order to contact the physician on call."³ In response, defendant moved to dismiss the new claim, arguing that the standing order was not evidence of ordinary negligence and could not be used to establish the standard of care in a medical malpractice claim. Because the standing order could not be used as the standard of care, defendant also argued that it could not be admitted as evidence in support of the claim. The trial court rejected these contentions, denying defendant's motion for summary disposition and granting plaintiff's motion to amend. It held that the standing order, by its terms, did not require or involve any medical judgment—the order simply required the nurse to notify a physician. Therefore, "whether defendant failed to follow the Standing Order is a question of reasonableness and sounds in negligence, and not medical malpractice."

On appeal, the Court of Appeals reversed in a published opinion. It first held that the proposed claim sounds in medical malpractice rather than ordinary negligence because plaintiff's core contention was that Gerbi failed to take specific actions in response to Corrado's second episode of vomiting. The Court wrote, "A lay fact-finder would not know that a physician should be immediately informed when a patient vomits twice in a matter of hours and could not rely solely on common knowledge and experience to determine whether it was reasonable for Gerbi to wait at least 20 minutes before attempting to consult a doctor about Corrado's status." Estate of Corrado v. Rieck , 333 Mich.App. 402, 412, 960 N.W.2d 218 (2020). Thus, according to the Court, because this claim involved questions outside the jury's common knowledge, it sounded in medical malpractice. Further, the Court concluded that the standing order could not be used to establish the standard of care for a medical malpractice claim and could not be used as evidence at trial. The Court therefore reversed the trial court's denial of defendant's motion for summary disposition and remanded for further proceedings.

Plaintiff sought leave to appeal in our Court, and we ordered argument on the application, requiring briefing on "(1) whether the proposed claim based on a violation of the standing order sounds in medical malpractice or ordinary negligence; and (2) whether evidence of the standing order is admissible at trial." Meyers v. Rieck , 507 Mich. 958, 959 N.W.2d 529 (2021).

II. STANDARD OF REVIEW

A trial court's decision on a motion for summary disposition is reviewed de novo. El-Khalil v. Oakwood Healthcare, Inc , 504 Mich. 152, 159, 934 N.W.2d 665 (2019).

III. ANALYSIS

In this case, we review the trial court's denial of summary disposition to defendant on the basis that plaintiff's amended allegations sufficiently raise a claim of ordinary negligence regarding the violation of the standing order. Two issues have arisen below: (1) whether plaintiff's new claim sounds in ordinary negligence or medical malpractice and can succeed when it alleges a bare violation of the standing order; and (2) whether a private entity's internal rules or regulations, like the standing order here, may be admissible evidence.

A. NATURE OF THE CLAIM AND THE STANDARD OF CARE

The threshold question addressed by the Court of Appeals and in the parties’ briefing here is whether plaintiff's amendments sound in ordinary negligence or medical malpractice. In general, a medical malpractice claim is one "brought against someone who, or an entity that, is capable of malpractice," involving actions that occurred "within the course of a professional relationship," and which "raise questions involving medical judgment" rather than "issues that are within the common knowledge and experience of the [fact-finder]." Bryant v. Oakpointe Villa Nursing Ctr., Inc. , 471 Mich. 411, 420, 422, 684 N.W.2d 864 (2004) (quotation marks and citations omitted). In the present case, the parties dispute whether the new allegations involve medical judgment. Plaintiff contends that no medical judgment was required to follow the standing order—the order, according to plaintiff, was mandatory and left Gerbi no discretion or opportunity to exercise medical judgment.

To determine the nature of the claim, we seek its "gravamen," and therefore "we disregard the labels given to the claim[ ] and instead read the complaint as a whole...." Trowell v. Providence Hosp. & Med. Ctrs., Inc. , 502 Mich. 509, 519, 918 N.W.2d 645 (2018). The question here, then, is whether the...