Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Application for a concealed pistol license (CPL) after restoration of firearm rights under MCL 28.424; MCL 28.425b(7)(f); MCL 28.426
Holding that the plain language of MCL 28.425b(7)(f) prohibits issuing a CPL to a convicted felon, and that neither MCL 28.424 nor 28.426 alter this, the court affirmed the circuit court’s order affirming defendant-county clerk’s denial of plaintiff’s application for a CPL. He previously successfully petitioned the circuit court to restore his firearm rights under MCL 28.424. He argued that this included the right to obtain a CPL. The court disagreed. MCL 28.425b(7)(f) states that the county clerk shall issue a CPL if the clerk determines certain conditions exist, including “the applicant has never been convicted of a felony in this state . . . .” Given that plaintiff did not dispute he was previously convicted of a felony, he was disqualified from obtaining a CPL. While he relied on language in the CPL application, the court concluded that regardless “whether the application asks about adult felony convictions, MCL 28.425b(7)(f) expressly forbids a convicted felon from obtaining” a CPL. It also rejected his argument that “interpreting MCL 28.425b(7)(f) as prohibiting any person convicted of a felony from obtaining” a CPL would render MCL 28.424 and 28.426 nugatory. As to the former, plaintiff failed to make any “meaningful argument why denying a convicted felon the right to obtain” a CPL would render it nugatory. Due to the restoration of his rights under MCL 28.424, he now enjoyed “a number of rights that he had previously lost, such as the right to own and possess a firearm. The fact that MCL 28.425b(7)(f) prohibits him from obtaining a [CPL] does not mean that MCL 28.424 is meaningless to plaintiff.” The court also noted that “MCL 28.424 does not expressly state that the right to obtain a [CPL] is restored,” and MCL 28.425b(7)(f) does not make an exception for applicants who “have had their firearm rights restored.” As to MCL 28.426, it “provides additional restrictions on” issuing a CPL. And because MCL 28.425b(7)(f) prohibited plaintiff from obtaining a CPL, whether MCL 28.426 applied to him was not important to determining whether he was entitled to receive a CPL. Given that he admitted he was convicted of two felonies, and he did not assert they had “been set aside, expunged, or otherwise nullified[,]” defendant correctly denied him a CPL.
Interpretation of an indemnity contract; Auto-Owners Ins Co v Campbell-Durocher Group Painting & Gen Contracting, LLC; “Arising out of”; Kochoian v Allstate Ins Co; Notice of non-party fault under MCL 600.2957 et seq
The court held that the trial court erred by denying defendants-third-party plaintiffs’ (Brodock and Dunigan) motion for summary disposition and granting defendant-third-party defendant’s (Michigan Paving) motion for summary disposition. Plaintiff in the underlying action sued Brodock and Dunigan, who in turn filed a notice of non-party fault against Michigan Paving. Plaintiff then amended his complaint to include negligence claims against Michigan Paving. Dunigan then filed a third-party complaint against Michigan Paving asserting a contractual breach for failing to assume its defense against plaintiff and for indemnification under the subcontract. Michigan Paving denied it had any obligation to indemnify or defend Dunigan because Michigan Paving was not performing covered work at the time of incident. The trial court found Michigan Paving was only required to indemnify Dunigan and its employees for claims that arose out of or were the result of its work and that under the subcontract it was only required to provide traffic regulator control when it was engaged in top course paving. It also found the evidence showed Michigan Paving was not engaged in such activity at the site of the accident and thus, was not required to indemnify Dunigan and Brodock. On appeal, the court agreed with Dunigan and Brodock that the trial court erred by finding Michigan Paving was not required to indemnify and defend them. It concluded that, based on a plain reading of the subcontract and an exhibit, the trial court erred by finding that Michigan Paving’s duties under the subcontract only arose when it was engaged in top course paving. “There was record evidence which created a material question of fact as to whether Michigan Paving was engaged in contractual work at the time of the collision between Brodock” and plaintiff. The court also concluded that Dunigan and Brodock were entitled to indemnification. Finally, it ordered the trial court on remand to address and decide the merits of Dunigan’s and Brodock’s breach of contract claim. Reversed and remanded.
Discovery in a criminal case; MCR 6.201; Motion to compel the production of unredacted police reports; The prosecution’s authority to redact witness contact information from discoverable police reports; MCR 6.201(A)(1) & (B)(2); Protective order; MCR 6.201(E); Modification of the requirements & prohibitions of the discovery rule; MCR 6.201(I); Court rule interpretation; Effect of the omission of a provision in one statute that is included in another statute; People v Underwood; Expressio unius est exclusio alterius; People v Garrison
Addressing an issue of first impression, the court held that the trial court did not err by determining that MCR 6.201(A)(1) did not grant the prosecution “the unilateral authority to redact police reports that were required to be disclosed under MCR 6.201(B)(2).” Thus, it affirmed the trial court’s order compelling disclosure of the unredacted police reports and remanded noting that, on remand, the prosecution “may request a protective order under MCR 6.201(E) or pursue an exception under MCR 6.201(I).” Defendant was charged with first-degree child abuse and open murder. During discovery, the prosecution provided defense counsel with a copy of the felony information containing the names of witnesses who could be called at trial, but no contact information. The contact information was redacted from the police reports provided to defense counsel. Defense counsel then successfully moved to compel the production of unredacted police reports. On appeal, the court rejected the prosecution’s argument that the trial court abused its discretion by granting defendant’s motion to compel unredacted police reports, noting that under MCR 6.201(B)(2), “redaction of police reports and interrogation records is permitted only when the information relates to an ongoing investigation.” In addition, “the fact that MCR 6.201 provides specific avenues to restrict the information disclosed in police reports supports the interpretation that the prosecut[ion] does not have the unilateral authority to redact information in a police report.” The court concluded that “absent an applicable exception provided for in MCR 6.201,” the prosecution must “produce unredacted police reports under MCR 6.201(B)(2).” It further noted that the “trial court left open the possibility that the prosecution may file for a protective order.”
Attorney-client privilege; MCL 767.5a(2); MRE 501; MRPC 1.6 & 1.9; Due process; United States v Kennedy (10th Cir); The exclusionary rule; Mapp v Ohio; The due-process test involving attorney-client communications; “Outrageousness”; United States v Voigt (3d Cir); Whether suppression of the evidence was an appropriate remedy
Holding that the government violated defendant’s right to due process, and suppression of the physical evidence was an appropriate remedy, the court affirmed the trial court’s suppression of that evidence. He was charged with first-degree arson and torturing or killing animals after his home was set on fire and his two dogs died in the blaze. He moved to suppress an email he sent to an employee of his defense counsel’s law firm in which he shared the names of the individuals to whom he had given his lawnmower and gas can on the basis it was protected by the attorney-client privilege, as well as the derivative evidence obtained from it. The trial court found the email was not privileged and denied his motion. In a prior appeal, the court reversed and remanded for the trial court to “address defendant’s contention that there was a constitutional violation requiring suppression of the derivative evidence via the fruit-of-the-poisonous-tree doctrine.” On remand, the trial court suppressed the evidence. In this interlocutory appeal, the court rejected the prosecution’s argument that the trial court erred by “constitutionalizing” the attorney-client privilege. It found that the trial court did not constitutionalize the privilege, and adopting Voigt’s three-part test, held that the government’s actions here violated defendant’s right to due process. “The government knowingly breached defendant’s attorney-client privilege. Rather than try to mitigate the breach, the government deliberately used information obtained from the privileged communication to obtain incriminating physical evidence. The government then charged defendant with several crimes, and it made clear that it intended to use the physical evidence at trial.” The record on appeal confirmed “that the government knew of the privilege; deliberately intruded into it; and defendant was actually and substantially prejudiced. This constituted a violation of due process, not just the common-law privilege.” As such, suppression of the physical evidence was the appropriate remedy. “The evidence obtained by the government in violation of defendant’s right to due process is readily identified and isolated, so suppression is a straightforward remedy. Moreover, with respect to the violation itself, although presented in a rather matter-of-fact set of stipulated facts, a moment’s reflection shows how brazen the government’s actions were in this case.”
Sufficiency of the evidence for a carjacking conviction; MCL 750.529a; Intent; Factors in determining whether a crime is a general-intent or specific-intent offense
Holding that carjacking under the amended current version of MCL 750.529a is a specific-intent crime and thus, the prosecution had to prove defendant intended to steal or permanently deprive the victim (a deputy, M) of his vehicle, the court concluded that the evidence was sufficient to support his conviction. This was the only conviction he challenged on appeal. The court compared the current version of the statute, as amended in 2004, with the prior version, and determined that the amended language supported its “conclusion that carjacking is a specific-intent offense because the prior statute was construed as a general-intent offense and the Legislature specifically amended MCL 750.529a to include ‘in the course of committing a larceny of a motor vehicle’ as an element of the offense.” Reviewing the elements of common-law larceny, it noted that it has “held that larceny is a specific intent crime requiring the prosecutor to prove that the defendant had the intent to steal or permanently deprive the owner of his or her property.” The Michigan Supreme Court has ruled “that the plain meaning of the phrase ‘in an attempt to commit the larceny’ applied to ‘situations in which a criminal defendant makes “an effort” or undertakes an “overt act” with an intent to deprive another person of his property, but does not achieve the deprivation of property.’” Based on MCL 750.529a’s unambiguous language, “the prosecution must establish that the defendant’s acts occurred during an attempt to commit, during the commission of, or after the commission of a larceny of a motor vehicle requiring the prosecutor to prove that the defendant had the intent to steal or permanently deprive a person of the motor vehicle.” The court further held that a rational trier of fact could have reasonably inferred “that defendant had the intent to steal or permanently deprive [M] of the patrol vehicle.” The jury could have reasonably found that he “used force during the commission of an attempted larceny of the vehicle when he hit [M] and then ran toward the patrol vehicle and attempted to engage the gearshift. A rational trier of fact could have reasonably concluded that defendant manifested the requisite specific intention to drive off in the patrol vehicle given he attempted to put the vehicle in gear” and that he would have succeeded but for the actions of M and another officer. Affirmed.
Search & seizure; Motion to suppress evidence; Investigatory stop; People v Barbarich; CCW; MCL 750.227(2); People v Jones; Permissibility of police approaching a person in a public place & asking questions; Concealed pistol license (CPL)
The court concluded that the trial court’s finding that the handgun on defendant’s person could not be considered “concealed” if it was apparent to the arresting officers was clearly erroneous, and that the officers had a reasonable, articulable suspicion that he was illegally carrying a concealed handgun. Thus, it reversed the grant of his motion to suppress and remanded for reinstatement of the charges. Defendant argued that his gun was not concealed but instead “was being carried consistent with Michigan’s open carry law.” Thus, he contended that the officers’ investigatory stop was unjustified and violated his Fourth Amendment rights. The court noted that they approached him “only after they saw a partially concealed handgun in the waistband of defendant’s pants. Defendant had been leaning over his vehicle checking his oil when the handle of his gun became visible from around his coat. Thus, it appears that the handgun would not have been even partially visible if defendant had been standing up straight and not leaning over his vehicle so as to cause his coat to fall forward and expose the gun in his waistband. In other words, persons who would come into ordinary contact with defendant would not have easily seen that” he had a gun in his waistband. The issue was not whether there was sufficient evidence to convict him of CCW – it was whether the officers “had a reasonable, articulable suspicion to support their investigatory stop . . . .” The court noted that they “were entitled to consider the totality of the circumstances, viewed and understood in light of their law enforcement experiences, in deciding whether to approach defendant to investigate the situation. Police officers are permitted to approach a person in a public place and ask questions without violating the Fourth Amendment.” They approached him while still in their vehicle and asked if he had a CPL. After he denied that he did (he was not obligated to respond at all), they exited their vehicle and detained him. The court found that the fact “the handgun became partially visible by the happenstance of defendant’s physical positioning or the incidental movement of his clothing does not mean that the gun was being ‘openly’ carried. In other words, the fact that the handgun was seen does not necessarily mean that the handgun was not ‘concealed.’”
Ineffective assistance of counsel; Failure to accurately advise of the consequences of rejecting a plea offer; Jury instructions on self-defense; Denial of request for an instruction on the no-duty-to-retreat rule; Lesser-included offense instruction
The court held that given the trial court’s prejudicial instructional errors, defendant-Martinez was entitled to a new trial. However, she may also be entitled to reinstatement of the plea offer. Thus, it vacated her convictions and sentences and remanded for further development of the record at a continued Ginther hearing. She was convicted of felonious assault and felony-firearm. Her appellate arguments centered on the circumstances surrounding a rejected plea offer. She claimed that her trial attorney, A, “failed to adequately explain to her a plea offer made by the prosecution early in the proceedings.” At the 2/27/18 final conference, the parties agreed that A “would ‘write a letter to the Gun Board’ before finalizing plea negotiations.” The proceedings reconvened on 3/13, but the Gun Board had not yet met. Thus, the matter was adjourned until 3/15. A subsequently requested production of the transcript from the 3/15 hearing. “The court reporter advised that she had no notes from the hearing. Represented by different counsel, Martinez filed her claim of appeal, initial appellate brief and motion to remand without the benefit of this transcript.” After remand, the court reporter found her notes and produced a transcript. It meaningfully contradicted A’s Ginther hearing testimony that “he asked the court to place Martinez under oath to ensure that she understood the terms and benefits of the plea offer.” The court noted that without the benefit of the transcript, the trial court on remand denied her motion to reinstate the plea offer on ineffective assistance of counsel grounds. Given the belated production of the transcript, “the parties were unable to adequately prepare for the Ginther hearing and address the questions presented.” Continuation of that hearing was “required to further develop the record with the benefit of this vital information. Only with the benefit of further testimony can the trial court make an initial determination of whether [A’s] performance fell below constitutional standards.” The court further held that the “trial court erred in denying Martinez’s request for an instruction regarding the no-duty-to-retreat rule in relation to the self-defense instruction.” If the jury had been informed she “had a right to stand her ground in addition to a right to use force,” there was a reasonable likelihood of a different verdict. The “failure to give the requested instruction denied Martinez a fair trial.”
Habeas corpus; Ineffective assistance of counsel; Failure to illicit certain testimony under the excited utterance hearsay exception; Failure to personally interview the witness; Failure to call a weapons expert; Trial strategy; Distinguishing Hinton v. Alabama
The court held that petitioner-Kendrick was correctly denied habeas relief where the Tennessee Supreme Court properly applied federal law in holding that his trial counsel was not ineffective for failing to illicit testimony about a defective rifle trigger from a police witness (M) or failing to hire a firearms expert. Kendrick was convicted of first-degree murder. He asserted that his hunting rifle accidently discharged. His habeas petition alleged that the Tennessee Supreme Court mistakenly applied federal law by ruling that his trial “counsel had a reasonable basis to believe” that M (who discovered the rifle and accidently shot himself in the foot with it) would testify that “he had not touched the trigger, and that this testimony would be ‘enough for a reasonable doubt as to anything.’” On habeas review, the court concluded that counsel made several attempts to convince the jury that M’s finger was not on the trigger when he shot himself, and that even if counsel had tried to introduce M’s prior statements as excited utterances, it still would not have changed the trial’s outcome. Thus, the court held that Kendrick failed to show that the state court “‘applied Strickland to the facts of his case in an objectively unreasonable manner.’” The court rejected his argument that his attorney should have personally interviewed M before he gave testimony to determine how he would testify at trial, holding that “the Sixth Amendment does not require an attorney to interview a witness personally when he reasonably believes that doing so is unnecessary.” Kendrick also argued that the Tennessee Supreme Court erred by ruling that his counsel was not deficient for failing to call a firearm expert to testify about potential defects in the rifle’s trigger. But the court agreed with the state court that “‘at the time defense counsel was forming his trial strategy, it was reasonable to anticipate that he could’” very effectively use M’s testimony to win an acquittal. It noted that even if counsel had sought an expert, “it was ‘entirely uncertain’ whether counsel would have found one in 1994 with a reasonable investigation.” Further, the court concluded that counsel made a reasonable effort to counteract the prosecution’s firearm expert. Thus, it held that the Tennessee Supreme Court’s decision was “‘reasonable and supported by the record.’” Affirmed.
Nominating petition requirements; MCL 168.413(1); MCL 168.544c; Whether MCL 168.544c(1) requires a candidate to list his or her residential address on nominating petitions; “Address” & “street address”; Writ of mandamus; MCR 3.305; Rental Props Owners Ass’n of Kent Cnty v Kent Cnty Treasurer; Mootness; Barrow v Detroit Election Comm’n
The court held that the Court of Claims did not err by granting plaintiff-judicial candidate a writ of mandamus ordering defendants-Secretary of State (SOS) and Board of Canvassers (Board) to accept his nominating petitions for judicial office and ordering them to place him on the primary ballot. Plaintiff sought to run as a nonincumbent judicial circuit judge candidate. In his nominating petitions, he listed the address of his law practice and committee headquarters, not his residential address. The SOS affirmed that his nominating petitions contained accurate information, so he obtained signatures on his petitions and submitted them to the SOS. An election opponent later challenged the validity of plaintiff’s nominating petitions on the basis that he did not list his residential address where he was registered to vote. The Board found plaintiff’s nominating petitions were insufficient, and determined he could not be certified as a candidate for the primary. He filed this action and the Court of Claims ruled in his favor. On appeal, the court first found that because this appeal “presents a publicly significant issue that could arise in the future yet evade judicial review,” it would review the issue. It then rejected defendants’ argument that the Court of Claims erred by granting plaintiff mandamus relief and ordering the SOS to place him on the primary election ballot. It noted that “MCL 168.544c(1) does not specify that the address identified in . . . the nominating petition be the candidate’s residence address.” The court was “not persuaded by defendants’ arguments that the terms ‘Street Address or Rural Route’ are synonymous with ‘residence address’ or ‘residential address’ because, had the Legislature ‘intended the same meaning in both statutory provisions, it would have used the same word.’” It concluded that the Court of Claims “correctly interpreted and applied MCL 168.544c(1). The record reflects that plaintiff demonstrated his entitlement to mandamus relief. He complied with the plain language requirements of MCL 168.544c(1), and his nominating petitions were sufficient to place his name on the . . . primary ballot. Defendants, therefore, were duty bound to certify his nominating petitions and place his name on the” ballot. Affirmed.
Sanctions for a frivolous motion for relief from judgment; MCR 2.612(C)(1)(f); MCR 1.109(E); Settlement allocation; The State’s subrogation & assignment rights as to a third party’s liability for a Medicaid recipient’s medical care; MCL 400.106(8); The federal anti-lien statute (42 USC § 1396p(a)(1)); Neal v Detroit Receiving Hosp; Arkansas Dep’t of Health & Human Servs v Ahlborn; Byrnes v Martinez; “Incur”; Pro rata allocation; Attorney fees & costs; Department of Health & Human Services (DHHS)
The court concluded that the trial court did not err in imposing sanctions against intervening plaintiff-DHHS for a frivolous motion for relief from judgment. Further, it did not err in effectively limiting the DHHS’s recovery for medical services paid for through Medicaid to the part of the medical malpractice action settlement agreement allocated to plaintiff-patient’s past medical expenses. The court also found that nothing prevented the trial court from using a pro rata approach in determining the part of the settlement allocated to those expenses, and that the amount apportioned to the DHHS was not reduced due to plaintiffs’ attorney fees or costs. Thus, it affirmed the trial court’s order approving the distribution of proceeds from the settlement. The court noted that the DHHS’s argument under MCR 2.612(C)(1)(f), relying on a case decided after entry of the trial court’s final order, “was legally deficient on its face.” While the trial court may have erred in relying on the fact the case was closed, its “rejection of the DHHS’s position that it could obtain relief from the final order based on a subsequently issued decision” by the court was correct. As to settlement allocation, the issue was whether “the federal provisions limit a state to recovering from funds allocated for past medical expenses or for any medical expenses, which would include future medical expenses.” The court held that pursuant to Ahlborn, and as recognized by Neal, due to § 1396p(a)(1), “states are only entitled to recover settlement proceeds that have been allocated to past medical expenses.” Next, it disagreed with the DHHS that its settlement share was reduced by a pro rata amount. Rather, “the trial court determined the portion of the settlement allocated to past medical expenses by using a pro rata approach, i.e., because plaintiffs settled the case for 21.25% of the value of the case, it followed that 21.25% of the incurred medical expenses were captured in the settlement amount.” The court found no error in this approach. Finally, it determined that, contrary to the DHHS’s claim, the trial court did not reduce the amount it “could recover based on plaintiffs’ attorney fees and costs.” The trial court awarded the “DHHS 21.25% of its $268,357.33 lien, or $57,025.93. Importantly, that 21.25% was calculated by using the total settlement amount before any attorney fees or costs were ever considered.”
Claim against an insurer for medical care provided to an insured; Standing; Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co; Assignment; Effect of the insured’s agreement to dismiss an action for PIP benefits against the insurer with prejudice
Holding that plaintiff-healthcare provider (MSBS) did not have standing to assert a claim against defendant-insurer (Citizens) for payment of PIP benefits for the medical care provided to its insured (defendant-Ford), the court affirmed summary disposition for Citizens. MSBS asserted it was entitled to payment from Citizens based on assignments from Ford. However, as of the dates of those assignments, “Ford had already entered into the arbitration agreement with Citizens whereby Ford settled all claims to PIP benefits that he had against Citizens, agreeing that Citizens would not be liable for any of Ford’s medical expenses that were not included in the agreement.” Thus, at the time he assigned MSBS his right to payment for the surgery performed by an MSBS surgeon, “he had already agreed to submit all claims for PIP benefits that stemmed from the accident to a neutral arbitrator and had stipulated to the dismissal of his lawsuit against Citizens with prejudice.” As a result, when he “assigned his right to payment of PIP benefits to MSBS, he had no right to assert a legal action against Citizens for these claims, and could not assign to MSBS more rights than he possessed.” While MSBS challenged the validity of the arbitration agreement, the court concluded that, as MSBS lacked “standing to assert a claim against Citizens” here, it did not show it was entitled “to challenge an agreement between Ford and Citizens to which MSBS was not a party and which was entered into long before MSBS rendered medical services to Ford.”
Jurisdiction; Whether plaintiff’s suit against three state appeals court judges was barred by the Rooker-Feldman doctrine; 28 USC § 1257; The Declaratory Judgment Act; § 2201(a); Whether the complaint presented a justiciable controversy; Sanctions under § 1927 & Fed.R.App.P. 38
The court affirmed the district court’s dismissal of plaintiff-law firm’s constitutional claims against defendants-Tennessee state court appellate judges based on lack of jurisdiction. It also directed the firm and its “counsel to show cause why sanctions should not be assessed against them on appeal.” Plaintiff sought a declaration that the judges had violated its Fourteenth Amendment rights by making false statements in a written opinion involving the firm. The district court ruled that “it lacked jurisdiction because plaintiff’s claims were barred by Rooker-Feldman, and because the complaint did not present a justiciable controversy.” The court agreed in both respects. As to the first, plaintiff’s action sought to have the district court “‘impermissibly review the factual basis of the relevant opinion.’” As to the second, it held that plaintiff failed to “present a justiciable case or controversy because plaintiff requested a ruling only on whether the past actions of defendants were right or wrong, which could not affect the present relationship between the parties.” Thus, the district court was not presented with an Article III controversy and lacked jurisdiction. As to defendants’ request that the court sanction the firm and its attorney individually under § 1927 and Rule 38, it found that “the jurisdictional defects presented by the complaint were ‘not . . . close issue[s],’” and that the firm “forfeited case-dispositive issues by failing to raise them for review.” In addition, the court shared “the district court’s concern for attorney Parrish’s penchant for calling state judges’ integrity into question seemingly whenever they disagree with him.” It instructed defendants to file an affidavit setting forth their reasonable costs and attorneys’ fees incurred by the appeal. Affirmed. The court retained jurisdiction pending its resolution of sanctions.
Whether a claim sounds in ordinary negligence or medical malpractice; Bryant v Oakpointe Villa Nursing Ctr, Inc; Whether an individual or entity is capable of committing medical malpractice; Kuznar v Raksha Corp; Accrual; MCL 600.5838a(1); “Licensed health facility or agency”; MCL 600.5838a(1)(a); “Licensed health care professional”; MCL 600.5838a(1)(b); Potter v McCleary; The Public Health Code (MCL 333.1101 et seq); The Professional Service Corporation Act; MCL 450.1285(1) (formerly MCL 450.225); Whether a nonprofit corporation can render professional services through a licensed health care professional; MCL 450.2261(6); Vicarious liability; Cox v Flint Bd of Hosp Managers; Personal representative (PR)
Holding that the trial court did not err by granting partial summary disposition for plaintiff-PR because her claims against defendant-medical provider sounded in ordinary negligence, not medical malpractice, the court affirmed. Plaintiff sued defendant after her husband died from an overdose of diabetic medication. She had administered the medication based on a conversation with defendant’s employee, a certified but unlicensed medical assistant. Plaintiff successfully moved for partial summary disposition, arguing that Count 1 of her complaint sounded in ordinary negligence because defendant was not capable of being sued for medical malpractice. On appeal, the court rejected defendant’s argument that the trial court erred by granting the motion. It noted that “under § 5838a(1)(b), as interpreted by our Supreme Court in Potter, a plaintiff may maintain a claim against a nonprofit corporation based solely on the nonprofit corporation’s vicarious liability for the professional services of its licensed health care provider-employees.” The court explained that defendant is “incapable of independently committing medical malpractice, so plaintiff’s direct-liability claims for negligent training, supervision, selection, and retention of staff must necessarily sound in ordinary negligence.” Because defendant’s employee “is not a licensed health care professional under MCL 600.5838a(1)(b), plaintiff’s claim that” defendant was vicariously liable for her actions “sounds in ordinary negligence, not medical malpractice.” In sum, “because a claim for medical malpractice cannot accrue against [defendant] either for its direct negligence in failing to train [its employee] or its vicarious liability for her allegedly negligent actions, plaintiff’s claims raised in Count 1 of her complaint cannot sound in medical malpractice.”