McLAIN v. LANSING FIRE DEPARTMENT, 309 Mich. App. 335

SAAD, P.J. Plaintiff appeals the trial court’s grant of

summary disposition in favor of defendants. For the reasons stated in this opinion, we affirm. I. FACTS and procedural history This case involves the death of plaintiffs decedent, Tracy McLain. According to plaintiffs original complaint, McLain suffered a respiratory attack in February 2009. When emergency personnel arrived, they administered medication and CPR, and inserted a breathing tube into McLain. Though McLain was promptly delivered to the hospital, she was declared brain-dead several days after her admission, and died soon after.

Plaintiffs complaint attributed her death to defendant Jeffrey Williams’s alleged placement of the breathing tube in her esophagus instead of her trachea. In deposition, Williams said that he followed proper procedure during McLain’s treatment, and that he did not place the breathing tube in McLain’s esophagus— nor did he see anyone else do so.

He also stated that (1) the intubating procedure appeared to have been successful, (2) he and other emergency personnel continuously monitored McLain’s status on the way to the hospital, and (3) he did not know how the tube could have been in her esophagus, apart from the possibility that it became dislodged.

In addition to stressing Williams’s statement that he did not place the breathing tube in McLain’s esophagus, defendants argued that the governmental tort liability act (GTLA), MCL 691.1401 et seq., and the emergency medical services act (EMSA), MCL 333.20901 et seq., provided them with immunity from plaintiffs suit. After an initial hearing, the trial court held that the GTLA did not give defendants immunity from plaintiffs suit. It further permitted plaintiff to file an amended complaint that alleged gross negligence or willful misconduct, to avoid the immunity defendants claimed under the EMSA.

Plaintiff filed such an amended complaint, and defendants responded by moving for

summary disposition under MCR 2.116(C)(7). After another hearing, the trial court granted defendants’ motion for

summary disposition. It held that plaintiff had failed to create a question of fact that defendants treated McLain with “gross negligence” or “willful misconduct,” and that defendants were therefore entitled to immunity under the EMSA.

The trial court also noted that the only evidence presented by plaintiff that suggested any error by defendants in their treatment of McLain — (1) medical progress notes from the hospital that stated the breathing tube was located in McLain’s esophagus (though the notes did not indicate when the breathing tube might have lodged itself in McLain’s esophagus); and (2) plaintiffs assertion that Williams’s testimony was not credible— was either of dubious admissibility and accuracy, or unsupported. On appeal, plaintiff claims that the trial court should have granted him

summary disposition under MCR 2.116(C)(9), or entered a default order against defendants under MCR 2.603(A), because defendants supposedly did not file an affidavit of meritorious defense. Plaintiff also asserts that the trial court erred when it held that, as a matter of law, plaintiff had failed to show that defendants acted with gross negligence under the EMSA. Defendants ask us to uphold the ruling of the trial court. II. STANDARD OF REVIEW A trial court’s decision on a motion for

summary disposition is reviewed de novo. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). When it grants a motion under MCR 2.116(C)(7), a trial court should examine all documentary evidence submitted by the parties, accept all well-pleaded allegations as true, and construe all evidence and pleadings in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Jesperson v Auto Club Ins Ass’n, 306 Mich App 632, 640; 858 NW2d 105 (2014).

A trial court’s decision on whether to enter a default in response to a defendant’s failure to submit an affidavit of meritorious defense is reviewed for an abuse of discretion. See Kowalski v Fiutowski, 247 Mich App 156, 163-166; 635 NW2d 502 (2001). A trial court does not abuse its discretion when it chooses an outcome within the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). III. ANALYSIS A. MERITORIOUS DEFENSE MCL 600.2912e(

l) specifies that: In an action alleging medical malpractice, within 21 days after the plaintiff has filed an affidavit in compliance with [MCL 600.2912d], the defendant shall file an answer to the complaint.

Subject to subsection (2), the defendant or, if the defendant is represented by an attorney, the defendant’s attorney shall file, not later than 91 days after the plaintiff or the plaintiffs attorney serves the affidavit required under [MCL 600.2912d], an affidavit of meritorious defense signed by a health professional who the defendant’s attorney reasonably believes meets the requirements for an expert witness under [MCL 600.2169], However, a medical malpractice defendant who asserts governmental immunity under the GTLA is not required to file an affidavit of meritorious defense pursuant to MCL 600.2912e(l): Because governmental employees are immune from breaches of the standard of ordinary care, the affidavit of merit requirements of MCL 600.2912e are not relevant to a defendant otherwise entitled to governmental immunity, and we therefore conclude that such a defendant may not lose the benefit of that immunity merely by failing to timely file the affidavit of meritorious defense. [Costa v Community Emergency Med Servs, Inc, 475 Mich 403, 412-413; 716 NW2d 236 (2006).] Although the EMSA is a separate statute from the GTLA, the two laws “share the common purpose of immunizing certain agents from ordinary negligence and permitting liability for gross negligence.” Jennings v Southwood, 446 Mich 125, 136; 521 NW2d 230 (1994).

As such, “the terms of the provisions should be read in pari materia.” Id. Accordingly, a defendant who claims immunity under the EMSA may not lose the benefit of that immunity merely by failing to timely file an affidavit of meritorious defense under MCL 600.2912e. Here, plaintiff says that the trial court erred when it denied his motion for

summary disposition under MCR 2.116(C)(9) and his motion for entry of a default under MCR 2.603(A), because defendants did not file an affidavit of meritorious defense. However, defendants argued that they were immune from plaintiffs suit under the GTLA and the EMSA. They were, therefore, not required to file an affidavit of meritorious defense, and the trial court correctly denied plaintiffs motions. See Costa, 475 Mich at 412-413. B. GROSS NEGLIGENCE OR WILLFUL MISCONDUCT MCL 333.20965(1) states: Unless

an act or omission is the result of gross negligence or willful misconduct, the acts or omissions of a medical first responder, emergency medical technician, emergency medical technician specialist, paramedic, medical director of a medical control authority or his or her designee. .. while providing services to a patient outside a hospital, in a hospital before transferring patient care to hospital personnel, or in a clinical setting that are consistent with the individual’s licensure or additional training required by the medical control authority ... do not impose liability in the treatment of a patient on those individuals or any of the following persons: (

f) The authoritative governmental unit or units. [Emphasis added.] “Gross negligence” is “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Jennings, 446 Mich at 136 (quotation marks and citation omitted). “[E]vidence of ordinary negligence does not create a material question of fact concerning gross negligence.” Maiden v Rozwood, 461 Mich 109, 122-123; 597 NW2d 817 (1999).

Further, “only evidence whose content or substance is admissible can establish the existence of gross negligence . . . .” Id. at 123. “Willful misconduct” is conduct with “intent to harm.” Jennings, 446 Mich at 140-141. Here, plaintiff unconvincingly argues that his pleadings and offers of proof created a question of fact regarding whether defendants committed gross negligence or willful misconduct in their medical response to McLain’s health emergency, which abrogates defendants’ immunity from suit under MCL 333.20965.

As the trial court noted, only two parts of the “volumes” of evidence plaintiff submitted are relevant to showing defendants were responsible for the alleged incorrect location of the breathing tube: (1) the intern’s medical progress notes; and (2) plaintiffs unsupported assertions that Williams’s testimony was not credible. Neither is sufficient to create a question of fact to negate defendant’s immunity from suit.

Again, the medical progress notes were dictated by a medical intern, who, by his own admission, did not have direct knowledge of where the tube was located, and did not know from whom he received the information he recorded — including his notation that the tube was located in McLain’s esophagus. As for plaintiffs assertions that Williams’s testimony lacked credibility, plaintiff did not present any testimony to oppose Williams’s version of events — he simply alleged that it was wrong.

Accordingly, the trial court correctly held that the medical progress notes and plaintiffs protestations against Williams’s credibility were insufficient to rebut defendants’ evidence that Williams did not commit any errors when he attended to McLain. Because plaintiff did not submit evidence sufficient to create a question of fact as to the “gross negligence” or “willful misconduct” of defendants’ actions under the EMSA, the trial court properly granted

summary disposition under MCR 2.116(C)(7). Affirmed. OWENS and K. F. Kelly, JJ., concurred with SAAD, P. J. Williams works as a fireman and paramedic for defendant city of Lansing. Defendant Michael Demps also provided emergency medical services in connection with the events underlying this case, but he was dismissed from the case by stipulation.

The trial court referred to MCL 691.1407(4), which provides: This act does not grant immunity to a governmental agency or an employee or agent of a governmental agency with respect to providing medical care or treatment to a patient, except medical care or treatment provided to a patient in a hospital owned or operated by the department of community health or a hospital owned or operated by the department of corrections and except care or treatment provided by an uncompensated search and rescue operation medical assistant or tactical operation medical assistant.

An intern at the hospital dictated the medical progress notes. He clarified in deposition that he did not have firsthand knowledge of many of the events described in the notes: for instance, he did not discover the breathing tube’s placement in McLain’s esophagus, nor was he aware of when the breathing tube might have lodged itself in McLain’s esophagus. He emphasized that his report reflected what he had been told about McLain’s case by other individuals (whom he could no longer identify).

The trial court therefore noted that the intern did not have “any direct information as to where the tube was located” and that the note was a “subjective” document “of the person writing the note’s best sense .. . .” For these reasons, the trial court doubted the document’s admissibility.

Specifically, the trial court stated: [I]t really does come down to .. . this medical record entry [dictated by the intern], which sort of sets in motion the suggestion that the tube was in the esophagus and not the trachea, and whether or not that.. . creates some fact question that sort of you can backtrack into what Williams did or did not do in terms of was he negligent in terms of not observing something, or was he grossly negligent.... And when I looked at the testimony of [the intern],... it’s not just that he doesn’t remember what he did at the time.

It seems clear . .. that he was not the person who had any direct information as to where the tube was located. . .. [W]hen you review that testimony, it basically says that he doesn’t know where the information came from other than . .. it’s sort of a subjective note of the person writing the note’s best sense, or, as he says “A note written to the best of their knowledge.” In my view, that’s not really evidence that’s admissible in response to the ... obligation on the part of the non-moving party to refute this motion for

summary disposition. Absent that, all we are left with, really, is this argument,. .. that it’s a credibility issue, and that we should submit to the jury whether or not Williams is credible in what he says he did even though there is no other testimony that really challenges that other than .. . this medical note. 6 The Legislature modified this provision, effective March 28, 2013, to begin the 91-day countdown from service of the plaintiffs affidavit of merit, instead of the mere filing of it. 2012 PA 609. This procedural change is not relevant to our determination of this case. In any event, plaintiff is wrong that MCR 2.603(

A) mandates an entry of default in the event a defendant fails to file an affidavit of meritorious defense. Instead, a court, in the context of a medical malpractice action, “may strike the answer” under MCR 2.115(

B) and enter a default under MCR 2.603(A). Kowalski, 247 Mich App at 164 (emphasis added). Whether to enter a default or resort to lesser remedies is left to the sound discretion of the court. See id. at 163-166. See also Costa v Community Emergency Med Servs, Inc, 263 Mich App 572, 580-581; 689 NW2d 712 (2004) (“This Court has more than once rejected similar assertions that a medical malpractice defendant’s failure to file an affidavit of meritorious defense pursuant to MCL 600.2912e mandates a default or other preclusion of the defendant from presenting a defense .. ..”), affd in

part 475 Mich 403 (2006). In this case, the trial court properly chose not to enter a default. Defendant did “plead or otherwise defend” against plaintiffs allegations by asserting immunity under both the GTLA and the EMSA. MCR 2.603(A)(1). Plaintiff’s attempt to invalidate the trial court’s order on the basis of defendant’s alleged failure to properly answer its complaint is thus the exact sort of hollow proceduralism the Michigan Supreme Court cautioned against in Costa. See Costa, 475 Mich at 412-413 & n 5.

As the trial court implied, the medical intern indicated at his deposition that the medical progress notes were hearsay and, therefore, inadmissible. Though we do not reach the issue, because adjudication of the matter is not necessary to resolve this case, it is possible that the medical progress notes are admissible under the exception to the hearsay rule contained in MRE 803(6) (stating that records of “occurrences, . . . opinions, or diagnoses .. . kept in the course of a regularly conducted business activity,” and not prepared in anticipation of litigation, may be admissible).

See note 5 of this opinion for the trial court’s discussion of both the medical progress notes and plaintiffs assertion that Williams lacked credibility. Plaintiff is barred from using res ipsa loquitur to negate defendants’ immunity under the EMSA because “[wjhile the doctrine .. . may assist in establishing ordinary negligence, [it] is not available where the requisite standard of conduct is gross negligence or wilful and wanton misconduct.” Maiden, 461 Mich at 127.