Pavlov v. Community Emergency Medical Service, Inc.

• Decision Date: 08 September 1992
• Docket Number: Docket No. 129847
• Citation: 491 N.W.2d 874,195 Mich.App. 711
• Parties: Galena PAVLOV, Personal Representative of the Estate of Aleksandr Pavlov, deceased, Plaintiff-Appellant, v. COMMUNITY EMERGENCY MEDICAL SERVICE, INC., Robert Latrielle, and Christopher Newell, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 874

491 N.W.2d 874

195 Mich.App. 711

Galena PAVLOV, Personal Representative of the Estate of Aleksandr Pavlov, deceased, Plaintiff-Appellant, v. COMMUNITY EMERGENCY MEDICAL SERVICE, INC., Robert Latrielle, and Christopher Newell, Defendants-Appellees.

Docket No. 129847.

Court of Appeals of Michigan.

Submitted June 15, 1992, at Detroit.

Decided Sept. 8, 1992, at 9:35 a.m.

Released For Publication Nov. 19, 1992.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Lee R. Franklin, Detroit, for plaintiff-appellant.

Galbraith & Booms by Steven B. Galbraith and Kevin S. Oliver, Southfield, for defendants-appellees.

Before JANSEN, P.J., and MICHAEL J. KELLY and CORRIGAN, JJ.

CORRIGAN, Judge.

In this negligence action, plaintiff Galena Pavlov appeals as of right from the trial court's grant of summary disposition based on defendants' immunity under the former emergency medical services act (EMSA), M.C.L. Sec. 333.20701 et seq.; M.S.A. Sec. 14.15(20701) et seq. ¹ We affirm.

Plaintiff and her forty-one-year-old husband Aleksandr were visiting friends on the night of June 19, 1988, when Mr. Pavlov, who had been drinking alcohol and swimming, began experiencing shortness of breath. After someone called 911, an emergency medical services (EMS) unit was dispatched to the house. The EMS crew found Mr. Pavlov lying down, "complaining of shortness of breath and pain radiating to the left arm." He was given oxygen. An advanced EMS (AEMS) team (defendants Robert Latrielle and Christopher Newell) arrived and performed an electrocardiogram (EKG). The results were normal. The AEMS team removed the oxygen mask and Mr. Pavlov appeared to improve. When he asked if he should be seen by a doctor, defendants replied that he should. Mr. Pavlov said that his family would take him and he signed a release form, waiving transportation to a hospital. Defendants left the premises. Plaintiff then briefly left the room. She returned to find Mr. Pavlov lying on the floor in full cardiac arrest. EMS personnel were summoned again and attempted resuscitation without success. Mr. Pavlov was later declared dead at a local hospital.

Plaintiff timely filed a three-count complaint against the two AEMS technicians and their private employer. She alleged negligence, wilful and wanton misconduct, and gross negligence. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). Defendants asserted immunity under the then governing provisions of the EMSA because plaintiff had failed to state a claim of either wilful misconduct or gross negligence that would avoid the statutory bar. The trial court granted defendants' motion as to all three counts.

I. IMMUNITY UNDER THE EMERGENCY MEDICAL SERVICES ACT

At the time plaintiff's claim arose, Michigan expressly excepted emergency medical personnel from negligence claims relating to the performance of their duties. The applicable statute provided:

When performing services consistent with the individual's training, acts or omissions of an ... emergency medical technician, emergency medical technician specialist, or advanced emergency medical technician, do not impose liability on those individuals in the treatment of a patient when the service is performed outside a hospital.... All persons named in this section ... are protected from liability unless the act or omission was the result of gross negligence or wilful misconduct. [M.C.L. Sec. 333.20737; M.S.A. Sec. 14.15(20737); ² emphasis added.]

Plaintiff argues that Sec. 20737 grants EMS technicians immunity only when they are acting in emergencies and that defendants' actions in failing to transport the decedent to a hospital ended the "emergency" and "preclude[s] them from claiming statutory immunity from liability...." We disagree.

The statutory scheme itself provided a definition of "emergency." M.C.L. Sec. 333.20703(1); M.S.A. Sec. 14.15(20703)(1) read:

"Emergency" means a condition or situation in which an individual declares a need for immediate medical attention for any individual, or where that need is declared by emergency medical personnel or a public safety official. Upon arrival at a scene of an emergency, and after direct communication with the medical control authority and approval of the medical control authority, an individual licensed under this part or a health professional licensed under article 15 who possesses training specific to the provision of emergency medical services, may declare that an emergency no longer exists and transportation by an ambulance is not necessary.

The undisputed evidence reflects that an emergency existed when defendants arrived at the home of the plaintiff's host. EMS had been summoned by a call to the local emergency system via 911. Thus, "an individual [had] declare[d] a need for immediate medical attention for [an] individual [decedent]." The emergency was never declared at an end "after direct communication with the medical control authority and approval of the medical control authority." Indeed, no evidence whatever suggests that defendants attempted "direct communication with the medical control authority" as defined by M.C.L. Sec. 333.20705(2); M.S.A. Sec. 14.15(20705)(2).

The statutory grant of immunity under M.C.L. Sec. 333.20737; M.S.A. Sec. 14.15(20737) applies only to care rendered in emergency situations. Knight v. Limbert, 170 Mich.App. 410, 414, 427 N.W.2d 637 (1988). Defendants' first encounter with the decedent was plainly an emergency situation. The emergency was not terminated under the statutory procedure. Therefore, Sec. 20737 was applicable and defendants are immune from liability. The trial court correctly granted defendants' motion for summary disposition of this count.

II. DEFENDANTS' ACTS DID NOT CONSTITUTE WILFUL MISCONDUCT

Plaintiff next claims that defendants' action in removing the oxygen mask may "rise to the level of" wilful misconduct and strip defendants of the protection of M.C.L. Sec. 333.20737; M.S.A. Sec. 14.15(20737). We cannot agree.

It has been long established in Michigan law that mere negligence cannot be cast as "wilfulness" simply for the purposes of bringing a complaint. As the Supreme Court said over a century ago, in rejecting a negligence claim:

The allegation that defendant [acted] willfully ... implies that the act was done with a set purpose to accomplish the results which followed the act. It involves more than negligence; it implies malice. [Montgomery v. Muskegon Booming Co., 88 Mich. 633, 644, 50 N.W. 729 (1891).]

Wilful means intentional. McKimmy v. Conductors Protective Assurance Co., 253 Mich. 521, 523, 235 N.W. 242 (1931). Wilfulness "transcends negligence--[it is] different in kind." Gibbard v. Cursan, 225 Mich. 311, 320, 196 N.W. 398 (1923); Finkler v. Zimmer, 258 Mich. 336, 341, 241 N.W. 851 (1932). "The term 'wilful' implies intention, but wilful misconduct lies somewhere between intentional conduct and ordinary negligence." Serra v. DeMaestri, 66 Mich.App. 171, 175, 238 N.W.2d 568 (1975) (child's intentional tort). Or, in the words of another panel of this Court, "willful negligence is quasi-criminal and manifests an intentional disregard to another's safety." Papajesk v. Chesapeake & O.R. Co., 14 Mich.App. 550, 556, 166 N.W.2d 46 (1968).

Plaintiff here, however, relies on authority construing the phrase "wilful and wanton misconduct." We think the two differ significantly. "Wanton" conduct is "reckless," conduct that "amounts to" wilful injury, see, e.g., LaCroix v. Grand Trunk W.R. Co., 379 Mich. 417, 424, 152 N.W.2d 656 (1967), but without intent. As the Supreme Court said in discussing Gibbard, supra, conduct that shows "such indifference to whether harm will result as to be the equivalent of a willingness that it does" fits the "wanton" prong of the "wilful and wanton" standard. Burnett v. City of Adrian, 414 Mich. 448, 455, 326 N.W.2d 810 (1982). A standard that permits liability for "wilful and wanton conduct" is less restrictive than one that confines liability to "wilful" conduct alone. The former allows liability when the defendant is so careless as to, in effect, intend harm, but the latter requires that intent actually be present.

We cannot accept plaintiff's invitation to engraft onto the statute a standard that is not included in its plain language. We do not possess that legislative power and authority. The governing statute employs only the words "wilful misconduct." Had the Legislature wished to expand the potential liability of emergency medical services providers, it could have used the phrase "wilful and wanton" as it appears in, for example, the recreational users statute, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485. ³ The Legislature is deemed to be aware of the existence of the law in effect at the time of its enactments. Malcolm v. East Detroit, 437 Mich. 132, 139, 468 N.W.2d 479 (1991).

Plaintiff has produced no evidence supporting an allegation that defendants intended to harm the decedent when they treated him on June 19, 1988. Plaintiff's counsel conceded as much at oral argument in the lower court, and defendants cite statements by several of plaintiff's witnesses that defendants did not intend the decedent any harm.

Further, plaintiff's complaint against defendants Latrielle and Newell sounds only in ordinary negligence, despite her references in the complaint to "wilful misconduct." Defendants were accused of "failing to properly assess [the decedent's] condition," "failing to provide emergency medical treatment," and generally failing to use "ordinary care." Alternatively, defendants allegedly showed "reckless and heedless disregard" of the decedent's needs. Defendants are immune from charges of ordinary negligence (see discussion in part I, supra ) and we have declined to read "wilful misconduct" as "wilful and wanton misconduct," thus eliminating the "reckless and heedless disregard" counts. The trial court correctly dismissed this court pursuant to ...