Swanzy v. Kryshak, SC: 163058

• Court: Supreme Court of Michigan
• Citation: 971 N.W.2d 206 (Mem)
• Docket Number: SC: 163058,COA: 351649
• Parties: Vicki SWANZY, Personal Representative of the Estate of John Swanzy, Plaintiff-Appellee, v. Edward J. KRYSHAK, M.D., Defendant, and Spectrum Health Primary Care Partners, d/b/a Spectrum Health Medical Group, Defendant-Appellant.
• Decision Date: 25 March 2022

971 N.W.2d 206 (Mem)

Vicki SWANZY, Personal Representative of the Estate of John Swanzy, Plaintiff-Appellee,
v.
Edward J. KRYSHAK, M.D., Defendant,
and
Spectrum Health Primary Care Partners, d/b/a Spectrum Health Medical Group, Defendant-Appellant.

SC: 163058
COA: 351649

Supreme Court of Michigan.

March 25, 2022

Order

On order of the Court, the application for leave to appeal the March 11, 2021 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

Viviano, J. (dissenting).

I respectfully dissent from the Court's decision to deny leave to appeal. This case presents a jurisprudentially significant question regarding when a claim for vicarious liability against a professional corporation sounds in medical malpractice. Because I question the Court of Appeals’ analysis and conclusion, I would hear oral argument on the application for leave to appeal.

The decedent in this case was treated for diabetes by Dr. Edward J. Kryshak, who was employed by defendant Spectrum Health Primary Care Partners (defendant). The decedent's wife had a question about the decedent's insulin and called Dr. Kryshak's office to ask if she could use an old vial of insulin that she had at home. She alleges that she spoke with Robin Zamarron, a certified but unlicensed medical assistant, who told her she could use the insulin and directed her as to how much to give him. The amount Ms. Zamarron told the decedent's wife was five times the amount that should have been administered. The decedent's wife administered the amount she had been directed to administer, which caused the decedent to fall into a coma and die.

The decedent's wife, as personal representative of the decedent's estate, sued Dr.

971 N.W.2d 207

Kryshak and defendant.¹ Count 1 of her complaint contained two parts: (1) that defendant was vicariously liable for Ms. Zamarron's negligence in giving incorrect information about the insulin substitution and dosage, and (2) that defendant was directly liable for its negligent training and supervision of Ms. Zamarron. The trial court granted partial summary disposition to plaintiff, ruling that Count 1 sounds in ordinary negligence, not medical malpractice. The Court of Appeals affirmed, holding that a claim of medical malpractice could not accrue against defendant for its direct negligence in failing to train Ms. Zamarron or its vicarious liability for Ms. Zamarron's allegedly negligent actions. Swanzy Estate v. Kryshak , 336 Mich.App. 370, 970 N.W.2d 407 (2021).

I question the Court of Appeals’ analysis and conclusion with respect to vicarious liability for Ms. Zamarron's allegedly negligent actions. A medical malpractice action cannot accrue against an individual or entity who is incapable of medical malpractice. Adkins v. Annapolis Hosp. , 420 Mich. 87, 95, 360 N.W.2d 150 (1984). Thus, we have previously recognized that "[t]he 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." Bryant v. Oakpointe Villa Nursing Ctr., Inc. , 471 Mich. 411, 420, 684 N.W.2d 864 (2004). When determining whether a claim sounds in ordinary negligence or medical malpractice, Michigan courts ask two questions: "(1) whether the claim pertains 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, 684 N.W.2d 864. If the answer to both questions is yes, the claim sounds in medical malpractice and is subject to the procedural and substantive requirements that govern such claims. Id.

At issue in this appeal is whether defendant is capable of malpractice, the answer to which turns on the first Bryant prong—"whether the claim pertains to an action that occurred within the course of a professional relationship[.]" Id. at 422, 684 N.W.2d 864. We have previously explained the professional relationship test as follows:

A professional relationship sufficient to support a claim of medical malpractice exists in those cases in which a licensed health care professional, licensed health care facility, or the agents or employees of a licensed health care facility, were subject to a contractual duty that required that professional, that facility, or the agents or employees of that facility, to render professional health care services to the plaintiff. [ Id. ]

MCL 600.5838a is the accrual statute establishing when a medical malpractice cause of action accrues. Only providers and facilities covered by MCL 600.5838a can meet the professional relationship prong of the Bryant test. See Potter v. McLeary , 484 Mich. 397, 415, 774 N.W.2d 1 (2009). MCL 600.5838a(1) states, in...