Immunity under the Emergency Medical Services Act (EMSA); Scope; “Treatment” under MCL 333.20965(1); Bartalsky v Osborn; Whether omissions can occur “in the treatment of a patient”; Gross negligence standard; MCL 691.1407(2)(c); Jennings v Southwood; Admissibility of evidence; MRE 801(d)(2)(A); MRE 803(2)

Holding that the EMSA applied, but that a fact question remained as to gross negligence, the court affirmed in part, reversed in part, and remanded. Plaintiff’s decedent (Dale) tested positive for COVID-19. EMS personnel from defendant-emergency medical services corporation responded on 10/3/21 and 10/5/21 but did not administer oxygen or transport him. He died on 10/7/21. On appeal, the court first held the EMSA’s limited immunity governed because defendants’ interactions with Dale were “treatment.” They assessed him, took vitals, and gave medical advice, and the statute expressly covers “acts or omissions.” The court explained that reading the statute otherwise “would render half of the phrase ‘act or omission’ nugatory.” It reiterated Bartalsky’s conclusion that “to qualify for immunity, a defendant must show . . . that the act or omission occurred ‘in the treatment of a patient.’” The court next held the trial court erred in removing the case from the jury on gross negligence. Applying Jennings and MCL 691.1407(2)(c), it concluded that a jury could find conduct “so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.” It noted disputed evidence about whether Dale actually refused treatment and transport, including mismatched time-stamps and misspellings on refusal signatures and a document examiner’s opinion that he did not sign. It also noted the potentially admissible content of a 911 call as an excited utterance and party-opponent admissions. The caller noted: “We slept out here because the ambulance has been here two days this week and they kept leaving him here and not taking him to the hospital,” and “they said the hospital was full.” Because these statements could well be substantively admissible under MRE 803(2) and MRE 801(d)(2), there was a “plausible basis” for admission at trial and they could be considered at summary disposition. The court declined to affirm on an intervening-cause theory not addressed below.