GLM GARAN LUCOW MILLER, P.C.

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1 LAW OFFICES OF GLM GARAN LUCOW MILLER, P.C. HANDBOOK OF MICHIGAN MEDICAL MALPRACTICE LAW th 12 Edition, 2012 Revised December 15, 2011 A MANUAL FOR ATTORNEYS, CLAIMS MANAGERS AND LEGAL ASSISTANTS Ian C. Simpson 1111 WEST LONG LAKE ROAD, SUITE 300 TROY, MICHIGAN

2 LAW OFFICES OF GLM GARAN LUCOW MILLER, P.C. MEETING YOUR DEFENSE LITIGATION NEEDS IN MICHIGAN AND INDIANA INTERNET: DETROIT: 1000 WOODBRIDGE STREET DETROIT, MI or FAX: OAKLAND COUNTY: 1111 WEST LONG LAKE ROAD, STE. 300 TROY, MICHIGAN or FAX: WASHTENAW COUNTY: 101 NORTH MAIN STREET, SUITE 801 ANN ARBOR, MI or FAX: ST. CLAIR COUNTY: 511 FORT STREET, SUITE 505 PORT HURON, MI or FAX: GRAND TRAVERSE COUNTY: 1131 EAST EIGHTH STREET P.O. BOX 3150 TRAVERSE CITY, MI /FAX: KENT COUNTY: 171 MONROE AVENUE NW, SUITE 102 GRAND RAPIDS, MI or FAX: GENESEE COUNTY: 8332 OFFICE PARK DRIVE GRAND BLANC, MI or FAX: INGHAM COUNTY: 504 SOUTH CREYTS ROAD, SUITE A LANSING, MI or FAX: UPPER PENINSULA: 1440 WEST RIDGE STREET MARQUETTE, MI or FAX: INDIANA: 8401 VIRGINIA STREET MERRILLVILLE, INDIANA or FAX:

3 Copyright 2012 by Ian C. Simpson. All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the author. Address all inquiries to: IAN C. SIMPSON GARAN LUCOW MILLER, P.C West Long Lake Road, Ste. 300 Troy, Michigan, Toll free: Direct:

4 Table of Contents Preface... iv I. II. III. I V V. Duty in Medical Malpractice Cases A. Duty In a Professional Health Care Relationship B. The Standard of Care... 8 C. Theories of Recovery D. Vicarious Liability, Respondeat Superior & Agency E. Statutory & Regulatory Law F. HMO & PPO Liability Medical Malpractice Procedure A. Pre Suit Procedural Rules B. Commencement of an Action C. Service of a Summons & Complaint D. Appearance for a Party E. Answering the Complaint F. Amending Pleadings G. Court Scheduling Orders H. Frivolous Claims I. Previously Litigated Matters Causation A. Cause in Fact B. Proximate (Legal) Cause C. Aggravation of Preexisting Conditions Damages & Allocation of Damages A. Damages Burden of Proof B. Types of Recoverable Damages C. Damages Caps D. Joint & Several Liability & Allocation of Fault E. Insurance, Collateral Sources & Setoffs F. Wrongful Death Actions G. Mitigation of Damages H. Interest as a Part of Damages Defenses A. Affirmative & Special Defenses B. Statutes of Limitations i

5 C. Tolling the Statute of Limitations D. Immunity E. Comparative Negligence F. Other Defenses VI. VII. VIII. IX. X. XI. Discovery A. Informal Discovery B. Formal Discovery C. Privileges Against Discovery D. HIPAA Federal Privacy Rule E. Sanctions for Failure to Provide Discovery or Misconduct Motion Practice A. Motion Practice Generally B. Motions Filed as First Responsive Pleading C. Discovery and Procedural Motions D. Motions for Summary Disposition E. Pre Trial Motions Case Evaluation, Offers of Judgment & Alternative Dispute Resolution A. Case Evaluation B. Offers to Stipulate to Entry of Judgment C. Alternative Dispute Resolution Expert & Opinion Evidence A. Qualifications of Medical Standard of Care Experts B. General Expert Qualification Requirements C. Other Expert Rules Admission of Evidence A. Witness Testimony B. Admission of Documents C. Admission of Statutes, Regulations, Policies & Procedures D. Selected Rules of Evidence Settlements & Dismissals A. Settlement Agreements B. Release Agreements C. Reporting of Settlements D. Dismissals of Actions E. Contribution Rights Among Tortfeasors ii

6 XII. XIII. XIV. XV. XVI. Trial Practice A. General Trial Procedure B. Trial Stipulations & C. Motions in Limine D. Voir Dire E. Exhibits F. Witness Procedure G. Trial Motions H. Jury Instructions I. Supplemental & Non Standard Jury Instructions J. Forms of Verdict Post Trial Proceedings A. Post Trial Motions B. Taxation of Costs C. Judgments D. Contribution E. Execution of Judgments F. Relief from Judgment or Order Arbitration Appeals A. Appeals Generally B. Appeals as of Right C. Applications for Leave to Appeal D. Bonds & Stays of Proceedings E. Appellate Briefs & Oral Argument F. Precedential Effect of Decisions G. Finality Related Areas of Law A. Insurance Law Generally B. Types of Insurance Policies C. Bad Faith of Insurer D. OSHA & MIOSHA E. Physician Credentialing & Licensing Disputes F. EMTALA (Federal Emergency Medical Treatment and Active Labor Act G. Maintaining Patient Records H. Indemnity Actions I. Civil Rights Actions iii

7 XVII. Index Preface th This 12 edition again includes all new Michigan Supreme Court and Court of Appeals decisions interpreting medical malpractice law and related areas of litigation law. Many unpublished cases are also included. Although they do not have precedential value, they often provide invaluable analysis of the relevant published decisions has been a relatively quiet year for Michigan medical malpractice law, with only a handful of published decisions this past year. The contents of this handbook are continuously revised as new case law becomes available. An electronic version of the most recent this handbook which can be instantly searched by key words and hyperlinks is available upon request, or by visiting The complexity of Michigan statutory and case law requires a practitioner to be well versed in the law of medical malpractice litigation in Michigan. This handbook is intended to help in that process. It is intended to provide a more than basic understanding of not only Michigan medical malpractice law, but related areas of Michigan civil litigation. However, this handbook is not a formal legal opinion. Rather, it is an edited accumulation of authority, including statutes, court rules and case law pertinent to the medical malpractice field. The law cited is subject to interpretation and conflicting opinion. It is simplified to fit handbook form. This handbook is not a substitute for individual analysis or research as to the law in any particular case. IAN C. SIMPSON iv

8 I. Duty in Medical Malpractice Cases A. Duty In a Professional Health Care Relationship B. The Standard of Care C. Theories of Recovery D. Vicarious Liability, Respondeat Superior & Agency E. Statutory & Regulatory Law F. HMO & PPO Liability A. Duty In a Professional Health Care Relationship. Duty is Created by Special Relationships Between Parties. A threshold question in any case is whether any duty was owed to the plaintiff. The next question is the nature of the duty owed. Duty arises from a special relationship beyond just being there. Whether there is a duty is a question of law for the Court to decide. A duty will not be imposed unless it is foreseeable that the actor s conduct may create a risk of harm. Where the court determines that a duty does exist, the nature and extent of the duty under the circumstances is generally for the jury to decide. Moning v Alfono, 400 Mich 425, 438 (1977). Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995). A duty arises from a relationship between the parties of such a character that social policy justifies its imposition. Prosser & Keeton, Torts (5th ed), 56, p 374. In determining whether to impose a duty, a Court must evaluate several factors, including the relationship between the parties, the foreseeability of harm, the burden on the defendant in imposing a duty, and the nature of the risk of harm from the conduct complained of in the action. Murdock v Higgins, 454 Mich 46, 53; 559 NW2d 639 (1997). Buczkowski v McKay, 441 Mich 96, ; 490 NW2d 330 (1992). Dyer v Trachtman, 470 Mich 45, 49; 679 NW2d 311 (2004). Where there is a special relationship, the duty of reasonable care extends to those parties who are readily identifiable as being foreseeably endangered Graves v Warner Bros, 253 Mich App 486, 492; 656 NW2d 195 (2002). Where no special relationship is established, there is no duty. A physician in a public place has no duty to help a person who is ill, even though the person may die. Oja v Kin, 229 Mich App 184, 187, 581 NW2d 739 (1998). Health Care Providers Subject to Medical Malpractice Law. A professional relationship sufficient to support a claim of medical malpractice exists where a licensed health care professional, licensed health care facility, or the agents or employees of a licensed health care facility, are subject to a contractual duty that requires the professional, facility, or agents or employees of the facility, to render professional health care services to the plaintiff. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004). Dyer v Trachtman, 470 Mich 45; 679 NW2d 311 (2004). Delahunt v Finton, 244 Mich 226, 230; 221 NW 168 1

9 (1928). Hill v Kokosky, 186 Mich App 300, ; 463 NW2d 265 (1990). Oja v Kin, 229 Mich App 184, 187; 581 NW2d 739 (1998). Adkins v Annapolis Hospital, 420 Mich 87, (1984). Medical malpractice law applies to all actions against state licensed health care professionals and also non-licensed health care providers employed by a licensed health care facility. MCL a. A Licensed health facility or agency means a health facility or agency licensed under article 17 of the Public Health Code, MCL to The Code defines a "licensed health care professional" as an individual licensed or registered under article 15 of the Public Health Code, MCL to MCL The licensure requirement for pharmacists is in article 15, MCL MCL (1) provides that health facility or agency means (a) An ambulance operation, aircraft transport operation, non-transport pre-hospital life support operation, or medical first response service. (b) A clinical laboratory. (c) A county medical care facility. (d) A freestanding surgical outpatient facility. (e) A health maintenance organization. (f) A home for the aged. (g) A hospital. (h) A nursing home. (i) A hospice. (j) A hospice residence. (k) A facility or agency listed in subdivisions (a) to (h) located in a university, college, or other educational institution. Before MCL was amended in 1986, the following professionals were expressly identified as covered when providing medical care and treatment: interns, residents, registered nurses, licensed practical nurses, registered physical therapists, clinical laboratory technologists, anesthetists, x-ray technicians, hospitals, licensed health care facilities, employees or agents of a hospital or licensed health care facilities, or any other state licensed health professional. MCL a refers generally to a licensed health care professional, licensed health facility or agency, or an employee or agent of a licensed health facility or agency who is engaging in or otherwise assisting in medical care and treatment... as being subject to, at the least, the medical malpractice statute of limitations. Bell v Mikkola, 193 Mich App 708, ; 485 NW2d 143 (1992). Bronson v Sisters of Mercy Health Corp, 175 Mich App 647, ; 438 NW2d 276 (1989). Whitney v Day, 100 Mich App 707, 712; 300 NW2d 380 (1980). MCL a does not, however, define what constitutes a medical malpractice action. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004). Physician Patient Relationship Required for Medical Malpractice. Malpractice is the negligent performance by a physician or surgeon of the duties devolved and incumbent upon him on account of his contractual relations with his patient. Delahunt v Finton, 244 Mich 226, 230; 221 NW 168 (1928). Bryant v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411, 423; 684 NW2d 864 (2004). A physician-patient relationship is a pre-requisite to any medical malpractice cause of action. Maiden v Rozwood, 461 Mich 109, 119, 131, 597 NW2d 817 (1999). Smith v Kowalski, 223 Mich App 610, 613, 567 NW2d 463 (1997). Welke v Kuzilla, 144 Mich App 245, 375 NW2d 403 (1987). Buczkowski v McKay, 441 Mich 96 (1992). In the absence of such a relationship, the physician s duty of care to act for the benefit of the patient does not exist. Dyer v Trachtman, 470 Mich 45, 49-50; 679 NW2d 311 (2004). The relationship is in the nature of a consensual contract, express or implied, under which a patient seeks medical assistance and a physician agrees to render such treatment. Medical malpractice is the negligent performance by a physician or surgeon of the duties devolved and incumbent upon him on account of his 2

10 contractual relations with his patient. Tierney v University of Michigan Regents, 257 Mich App 681, 686; 669 NW2d 575 (2003). The relationship is created in three basic ways: 1) accepting a person as a patient, 2) undertaking to examine and treat a patient, or 3) an agreement to be "on call" or be available to provide medical care. Zoterell v Repp, 187 Mich 319, 330, 153 NW 692 (1915). Lince v Monson, 363 Mich 135, 108 NW2d 845 (1961). Bronson v Sisters of Mercy, 175 Mich App 647, 438 NW2d 276 (1989). Danner v Holy Cross Hospital, 189 Mich App 397, 398, 474 NW2d 124 (1991). A professional relationship began once the patient s parents registered at the emergency room entrance and began waiting for treatment. Krueger v Spectrum Health, (Unpublished, August 25, 2005). A physician-patient relationship exists where a doctor renders professional services to a person who has contracted for such services. Hill v Koksky, 186 Mich App 300, 303; 463 NW2d 265 (1990). A physician must actively participate in the patient s care or essentially direct the course of the patient s treatment. NBD v Barry, 223 Mich App 370; 566 NW2d 47 (1997). Oja v Kin, 229 Mich App 184, 187; 581 NW2d 739 (1998). Jaynes v Ashraf (Unpublished, October 6, 2009). Limited Duty to Third Persons. A physician generally has no duty to persons other than patients. Paul v Plymouth General Hospital, 160 Mich App 537, 408 NW2d 492 (1987). Dyer v Trachtman, 470 Mich 45; 679 NW2d 311 (2004). Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 45; 594 NW2d 455 (1999). Bronson v Sisters of Mercy Health Corp, 175 Mich App 647, 652; 438 NW2d 276 (1989). Further, there is generally no duty to protect third persons against criminal acts. MacDonald v PKT, Inc, 464 Mich 322, 628 NW2d 33 (2001). Graves v Warner Bros, 253 Mich App 486, 492; 656 NW2d 195 (2002). However, there is a duty to third person under some circumstances. MCL (1) of the Mental Health Code provides that if a patient communicates to a mental health professional treating the patient a threat of violence against a reasonably identifiable third person and there is an apparent intent and ability to carry out that threat in the foreseeable future, the mental health professional has a duty to take action as prescribed in MCL (2). The statute adds that Except as provided in this section, a mental health professional does not have a duty to warn a third person of a threat... MCL does not entirely abrogate a common-law duty where no threat was communicated. MCL (1) only modifies a mental health professional s common-law duty to warn or protect a third person when a threat described in MCL (1) is made. The statutory duty only arises only if three criteria are met: (1) a patient makes a threat of physical violence, (2) the threat is against a reasonably identifiable third person, and (3) the patient has the apparent intent and ability to carry out the threat. If these three criteria are not met, the duty under the statute is not triggered. The statutory language is not so comprehensive as to indicate that it intended to completely abrogate the common law. Dawe v Dr. Reuven Bar-Levav, 485 Mich 20; 780 NW2d 272 (2010). A common-law duty exists generally to warn third persons if a foreseeable danger to others is made known during a patient s treatment. Swan v Wedgwood Christian Youth & Family Services, 230 Mich App 190, 195; 583 NW2d 719 (1998). Hinkleman v Borgess Medical Center, 157 Mich App 314, 403 NW2d 547 (1987). Bardoni v Kim, 151 Mich App 169, 390 NW2d 218 (1986). Sellers v United States, 870 F2d 1098 (6th Cir 1989). Chrile v United States, 564 FSupp 341 (ED Mich 1983). Duvall v Goldin, 139 Mich App 342, 362 NW2d 275 3

11 (1984). Waatti v Marquette General Hospital, 122 Mich App 44, 329 NW2d 526 (1982). The special treatment relationship must be sufficiently strong to require a defendant to take action to benefit the injured party. Murdock v Higgins, 454 Mich 46, 53-54, 559 NW2d 639 (1997). Moore v St. Joseph Nursing Home, Inc, 184 Mich App 766, 768, 459 NW2d 100 (1990). Hospitals also owe a duty to a patient s family to take reasonable measures to prevent foreseeable harm. Shephard v Redford Community Hospital, 151 Mich App 242, 390 NW2d 239 (1986). Duty to Family Member Witnessing Malpractice. An immediate family member within a zone of danger may recover if severe mental disturbance is caused from witnessing a serious negligently inflicted, or threatened, injury. Nugent v Burmeister, 195 Mich App 158, 161 (1992). Wargelin v Sisters of Mercy, 149 Mich App 73 (1986). Gustafson v Faris, 67 Mich App 356 (1976). Henley v Dept of State, 128 Mich App 214 (1983). Medical Malpractice Rules Differ From Other Claims. Medical malpractice actions have a whole range of different statutory and common law rules which must be followed. The essential question is whether the applicable standard of care was adhered to by the Defendant. Bronson v Sisters of Mercy, 175 Mich App 647, 438 NW2d 276 (1989). The standard of care is established by qualified experts in the applicable area of medicine and is separate and independent of any agreement or contract. Expert testimony is almost always required to establish the standard of care. All medical malpractice claims begin by mailing a pre-suit notice of intent to the health care providers whose conduct is criticized. The statute of limitations is two years, compared to three years in most negligence claims. Also, there are caps on all non-economic damages. Ordinary Negligence & Medical Care. Medical malpractice claims have two defining characteristics. First, malpractice only occurs during the course of a professional relationship. Second, claims of medical malpractice raise questions of medical judgment. Where a claims raises only issues within the common knowledge and experience of lay persons, it is an ordinary negligence even if a professional relationship existed at the time. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004). Dorris v Detroit Osteopathic Hospital Corp, 460 Mich 26, 47, 594 NW2d 455 (1999). Weaver v University of Michigan Bd of Regents, 201 Mich App 239, 242, 506 NW2d 264 (1993). Gold v Sinai Hospital of Detroit, Inc, 5 Mich App 368, 370, 146 NW2d 723 (1966). Fogel v Sinai Hospital of Detroit, 2 Mich App 99, 138 NW2d 503 (1965). In most medical malpractice claims determining reasonable and appropriate care is impossible without experts testifying as to the professional standards to be applied under the circumstances. That is why malpractice claims are often termed battles of the experts. Medical malpractice actions have special rules. However, a claim arising out of medical treatment may be ordinary negligence if the circumstances do not involve the exercise of professional judgment. In such cases, a jury can determine the reasonableness of the conduct without expert testimony. Dyer v Trachtman, 470 Mich 45; 679 NW2d 311 (2004). Differentiating Ordinary Negligence & Medical Malpractice. Negligent dispensing of the wrong medication is malpractice as opposed to ordinary 4

12 negligence. Simmons v Apex Drug Stores, Inc, 201 Mich App 253; 506 NW2d 562 (1993), mod by Patterson v Kleiman, 447 Mich 429, (1994). Becker v Meyer Rexall Drug Co, 141 Mich App 481; 367 NW2d 424 (1985). Assessment of the level of sterility and cleanliness needed for a patient is medical malpractice, but failing to adequately and competently provide proper hygiene is ordinary negligence. Davis v Botsford Gen. Hosp. (Unpublished, May 24, 2005). A claim of breach of a duty to provide an accident-free environment is a claim of strict liability and cannot be maintained. Assessing the risk of positional asphyxiation generally requires specialized knowledge and sounds in malpractice. A risk assessment as to whether a bed rail creates a risk of entrapment or asphyxiation generally requires knowledge of a patient s medical history and behavior and sounds in malpractice as it requires understanding and consideration of the risks and benefits of particular restraints in light of a patient s medical history and treatment goals. Whether CENA s were adequately trained to recognize any risks posed by bed rails and other restraint systems requires expert testimony. If plaintiff alleges a defendant responded inadequately to a risk, professional judgment may be involved, but a claim that defendant knew of a risk and did nothing is ordinary negligence and no expert testimony is needed as common knowledge and experience may determine the issue. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004). Jackson v Harper Hosp. (Unpublished, September 12, 2006). Injuries during transfers are malpractice where special training is required to learn transfer techniques. Regalski v Cardiology Associates, PC, 459 Mich 891; 587 NW2d 502 (1998). A claim may present mixed counts of ordinary and professional negligence, depending upon which claims require professional judgment. Billops v St. Anne s Convalescent Ctr. (Unpublished, 03/09/04). Under what circumstances a dementia or other patient requires supervision or restraint is beyond the ordinary layman s knowledge, and involves the exercise of judgment beyond the knowledge of ordinary lay persons. Waatti v Marquette Gen Hosp, Inc, 122 Mich App 44, 49; 329 NW2d 526 (1982). Starr v Providence Hosp, 109 Mich App 762, 766; 312 NW2d 152 (1981). The use of bed rails is ordinary negligence. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004). A fall off an x-ray table is ordinary negligence. Estate of Ginger v Battle Creek Health Systems (Unpublished, 06/04/02). A claim of injury during transfer to a wheelchair is medical malpractice as lay persons do not know the correct methods and techniques for transferring patients. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488; 668 NW2d 402 (2003). Having Plaintiff stand against doctor s orders is medical malpractice. Lewandowski v Mercy Memorial Hosp. Corp. (Unpublished, December 8, 2003). Whether instruments are properly sterilized is medical malpractice. Stoughton v Borgess Medical Ctr. (Unpublished, December 5, 2003). Whether to interrupt an MRI and remove a patient, and the extent the technician should maintain communication with the patient is medical malpractice. Sfreddo v University of Michigan Regents, (Unpublished, August 19, 2004). Negligently assisting in moving from the bathroom to a bed, dealing with a port-a-cath, and administering a heparin treatment are medical malpractice claims. Campins, v Spectrum Health, (Unpublished, September 9, 2004). Claims that nursing staff were rude, unprofessional, and failed to exercise due care, were medical malpractice claims. Lindsey v St. John Health System, Inc. (Unpublished, March 22, 2005). Alleged a failure and/or delay in treating a cardiac arrest and died 5

13 when on full code status is medical malpractice. Zacks v Tendercare, Inc., (Unpublished, July 28, 2005). Inadvertent injection of a toxic drug, Nystatin, rather than administering it orally during cardiopulmonary resuscitation and nursing staff supervision" are medical malpractice. Dennis v Specialty Select Hosp.-Flint (Unpublished, September 29, 2005). An agent pushing or otherwise causing Plaintiff to roll off a table while positioning him for an MRI is ordinary negligence. Howell v Macomb MRI (Unpublished, October 11, 2005). Allegations of false representations to induce Plaintiff to have a circumcision and a failure to inform of risks associated with the procedure sound in medical malpractice. Dixon v Ambani, (Unpublished, November 22, 2005). A claim that defendant gave the wrong medication sounded in medical malpractice. Graham v Rite Aid Corp., (Unpublished, May 13, 2003). A complaints that a dressing was applied too tightly after a bunionectomy, causing prolonged pressure and permanent anatomical and neurological damage to the foot raised questions of medical judgment, and was a medical malpractice claim. David v Sternberg, 272 Mich App 377, 381; 726 NW2d 89 (2006). Alleged improper management of an infection was malpractice. Sessoms v Bay Regional Medical Center (Unpublished, August 22, 2006). A claim based upon a failure to obtain informed consent require expert testimony. Rodgers v Syverson, (Unpublished, September 19, 2006). Paul v Lee, 455 Mich 204, 212; 568 NW2d 510 (1997), overruled on other grounds Smith v Globe Life Ins co, 460 Mich 446, n 2 (1999). A delay in filling a prescription involved professional judgment. Woodward Nursing Home, Inc, v Medical Arts, Inc., (Unpublished, January 24, 2006). Where two nurse assistants lost their grip and dropped the decedent while moving her from a bed to a wheelchair the claim was ordinary negligence as there was no criticism of the decision to transfer, the type of retaining belt used, or how it was fastened. Sheridan v West Bloomfield Nursing & Convalescent Ctr., Inc., (Unpublished, March 6, 2007). A claim that an aide abandoned an elderly resident who was known to be at risk for falling was ordinary negligence. Harrier v Oakwood Skilled Nursing Center (Unpublished, March 27, 2007). Leaving a surgical sponge in during surgery was ordinary negligence. Small, v Wysong, (Unpublished, November 13, 2007). Allegations that nursing staff were negligent in failing to properly respond to a call button and failed to accurately report information that plaintiff was bleeding from a catheter was medical malpractice. Aaron Sibley, Jr. v Borgess Medical Center, (Unpublished, July 15, 2008). Where a pharmacist filled a prescription for 5 mg of medication instead of 0.5 mg, the prescribed amount, was ordinary negligence. Crozier v Henry Ford Hospital (Unpublished, December 11, 2008). An alleged refusal to order an MRI, stated a claim of medical malpractice. Hetherington v Great Lakes Orthopaedic Center, P.C. (Unpublished, March 17, 2009). A claim that the defendant should have removed the entire guide wire from the breast after a biopsy was medical malpractice. Harrington v Casale (Unpublished, October 19, 2010). It was a question of medical judgment whether EMS personnel responded timely to a 911 call. Lockwood v. Mobile Medical Response, Inc., LC, Mich (June 7, 2011). The placement of another individual s medical records within the decedent s records raised questions of medical judgment beyond the realm of common knowledge and experience. A mistaken dictation within the medical file of the decedent raises the issue of whether the medical treatment of the decedent would have been different as a result of any alleged error contained in the medical documents and whether the decedent was harmed as a result. Zimmer v. Henry Ford Wyandotte Hospital (Unpublished May 10, 2011). 6

14 Gravamen of a Claim Determines Whether it is Medical Malpractice. Medical malpractice claims pled under different theories of recovery will generally be held to sound in malpractice, including claimed breaches of contract relating to medical treatment. All medical malpractice claims require adherence to medical malpractice rules and procedure. David v Sternberg, 272 Mich App 377, 381; 726 NW2d 89 (2007). The factual background of a claim, and not its label, determines whether a claim is medical malpractice. Tipton v William Beaumont Hosp., 266 Mich App 27, 34; 697 NW2d 552 (2005). Awkerman v Orthopedic Group, 143 Mich App 722, 373 NW2d 204 (1985). A plaintiff cannot avoid the procedural requirements of a medical malpractice action by simply couching the claim as something else. Wilson v Stilwill, 411 Mich 587, 611; 309 NW2d 898 (1981). Stover v Garfield, 247 Mich App 456, ; 637 NW2d 221 (2001), rev d on other grounds, 446 Mich 887 (2002). Estate of Rayment v Northfield Place (Unpublished, March 16, 2004). A contract claim against a nursing home is in fact a medical malpractice claim. Woodward Nursing Home, Inc. v Medical Arts, Inc., (Unpublished, January 24, 2006). Actionable negligence may arise from a contractual relationship, as every contract has a concurrent common-law duty to perform it with ordinary care, so negligent performance constitutes a tort as well as a breach of contract. Fultz v Union-Commerce Associates, 470 Mich 460, 465; 683 NW2d 587 (2004). Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967). Pharmacy Claims. Pharmacists are health care providers under MCL for the purposes of malpractice statutes and laws. Becker v Meyer Rexall Drug Co, 141 Mich App 481, 485; 367 NW2d 424 (1985). A complaint alleging a pharmacist negligently dispensing the wrong medication is governed by malpractice statutory requirements as opposed to ordinary negligence requirements. Simmons v Apex Drug Stores, Inc, 201 Mich App 253; 506 NW2d 562 (1993), mod by Patterson v Kleiman, 447 Mich 429, (1994). Where the Defendant pharmacist filled a prescription for 5 mg of medication instead of 0.5 mg, which was the prescribed amount, the matter was one of ordinary negligence. Crozier v Henry Ford Hospital (Unpublished, December 11, 2008). A delay in filling a prescription involved the exercise of professional judgment. Woodward Nursing Home, Inc, v Medical Arts, Inc., (Unpublished, January 24, 2006). Where a pharmacy technician erroneously filled prescription for.125 mg tablets with 1 mg tablets, and neither the pharmacy nor its non-pharmacist employee technician qualified as a licensed professional or a licensed health facility, the claim was for ordinary negligence and the general three year statute of limitations applied instead of the two year medical malpractice period of limitation. Kuznar v Raksha Corp., 481 Mich 169, 750 NW2d 121 (2008). As the licensure requirement for pharmacies appears in article 15 of the Public Health Code, (MCL ), and not article 17, a pharmacy does not qualify as a "licensed health facility or agency" subject to malpractice actions, as set forth in MCL a(1). Independent Medical Examination Liability. An IME physician has a limited physician-patient duty to perform an examination in a manner so as not to cause physical injury to the examinee. If an injury results from an IME, there can be a claim for ordinary negligence. Dyer v Trachtman, 470 Mich 45; 679 NW2d 311 (2004). Generally, an IME physician does not undertake to treat a person, and while 7

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