                          STATE OF MICHIGAN

                           COURT OF APPEALS


DEBRA POPRAVSKY and WALLACE                                        UNPUBLISHED
POPRAVSKY,                                                         February 27, 2018

              Plaintiffs-Appellees,

v                                                                  No. 335773
                                                                   Oakland Circuit Court
BOTSFORD HOSPITAL, doing business as                               LC No. 2015-149941-NO
BOTSFORD GENERAL HOSPITAL,
BOTSFORD HEALTH CARE and BEAUMONT
HEALTH, and NICOLE REED,

              Defendants-Appellants.


Before: TALBOT, C.J., and METER and TUKEL, JJ.

PER CURIAM.

       Defendants appeal by leave granted1 an order denying defendants’ motion for partial
summary disposition and an order denying defendants’ motion to compel an independent
medical examination (IME). We affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.

                                       I. BASIC FACTS

        On May 3, 2013, plaintiff2 Debra Popravsky was admitted to Botsford Hospital with
nausea, vomiting, diarrhea, and abdominal pain. Once an admission assessment was completed,
defendant Nicole Reed, the registered nurse assigned to plaintiff, performed a fall risk
assessment revealing that plaintiff was at a low risk for falls. Upon plaintiff’s admission, the
treating physician ordered that she was to be on bedrest with assistance for bathroom privileges.
She also was not to eat or drink anything by mouth. However, Shameka Hogains-West, a


1
 Popravsky v Botsford Hosp, unpublished order of the Court of Appeals, entered January 13,
2017 (Docket No. 335773).
2
  Because plaintiff Wallace Popravsky’s claims are derivative of Debra’s, our reference to
“plaintiff” in this opinion will refer to Debra.


                                               -1-
nursing assistant involved with plaintiff’s care, testified that plaintiff was given something to
drink by mouth once during her stay.

        During an initial assessment by a nurse upon admission, plaintiff asked what she should
do if she needed to access the restroom. Plaintiff recalled the nurse replying that plaintiff should
not use a bedpan, as it was more desirable that she “get up and walk as much as possible.” On
May 4, 2013, Reed gave plaintiff a Braden scale test to determine—according to Reed’s
assessment, not the assessment of a physician—plaintiff’s physical capabilities. Reed
determined that plaintiff was capable of walking on occasion, with no limitation on her mobility.
Throughout the day, plaintiff was documented moving to and from her bathroom with no
indication as to whether she received any assistance. At no point were the physician’s orders
limiting plaintiff to bedrest with assisted bathroom privileges changed.

         On May 5, 2013, shortly after midnight, Reed injected Zofran into plaintiff’s IV tubing.
Reed did not recall spilling any of this medication. Between 12:00 a.m. and 2:00 a.m., plaintiff
fell when she got out of bed to use the restroom. She stated that when she put her feet on the
floor, she immediately slipped on some liquid and “fell on [her] back, slammed [her] knee, and
hit [her] head.” Plaintiff did not see the liquid at any time prior to the fall. She testified that she
did not know specifically where the alleged puddle was or the size of the puddle, but could recall
that it was positioned somewhere “under—next to the bed.” When asked about the details of the
liquid, plaintiff was unable to provide any information.

         Plaintiff filed a complaint against defendants alleging premises liability, ordinary
negligence, medical malpractice (as an alternative to ordinary negligence), and res ipsa loquitur.3
The trial date was set for November 28, 2016. Defendants moved for summary disposition of
plaintiff’s claims for premises liability, ordinary negligence, and res ipsa loquitur. Defendants
argued, among other things, that plaintiff’s claims sounded in medical malpractice. Defendants
also filed a motion to compel plaintiff to submit to an IME.

     The trial court held a hearing on these motions. With regard to defendants’ motion for
summary disposition, the trial court held:

               The Court has considered the arguments of counsel, the law. The Court
       will indeed hold off on the decision on res ipsa until after the close of proofs. The
       Court decrees that this case sounds in ordinary negligence, not medical
       malpractice. The Court is looking at the order of the doctor, bed rest with
       assistance, and the Court is of the adjudication that that beckons ordinary
       common understanding; it doesn’t necessitate the solicitation of experts.

              So it’s—it’s ordinary negligence; that’s what this Court’s ruling is. The
       Court finds a question of fact on the premises liability; therefore, res ipsa lo—res



3
 A fifth count of “informed consent” was voluntarily dismissed and is not relevant to the issues
on appeal.


                                                 -2-
       ipsa remains, not as an independent cause of action, of course.             Ordinary
       negligence remains. Premises liability remains.

Accordingly, in a written order, the trial court dismissed the medical malpractice count and
denied defendants’ motion for summary disposition on the other counts.

        Regarding defendants’ motion to compel plaintiff to submit to an IME, the trial court
held, “The Court respectfully denies the motion for the IME. We’re past the date. That’s that.”

                II. DEFENDANTS’ MOTION FOR SUMMARY DISPOSITION

        Defendants argue that the trial court erred when it denied their motion for summary
disposition of plaintiff’s claims of premises liability, ordinary negligence, and res ipsa loquitur.
We agree. Further, we conclude that the trial court erred when it determined that plaintiff’s
claims sounded in ordinary negligence and not medical malpractice. We thus reverse the order
of the trial court and remand for proceedings consistent with this opinion as to the medical
malpractice claim.

        This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). Additionally, this
Court reviews a trial court’s determination to classify an action as ordinary negligence or
medical malpractice de novo. Bryant v Oakpointe Villa Nursing Ctr, 471 Mich 411, 419; 684
NW2d 864 (2004). The issue of whether the doctrine of res ipsa loquitur is applicable to a
particular case is a question of law, Jones v Porretta, 428 Mich 132, 154 n 8; 405 NW2d 863
(1987), which this Court also reviews de novo, Ross v Auto Club Group, 481 Mich 1, 7; 748
NW2d 552 (2008).

        Motions for summary disposition under MCR 2.116(C)(10)4 test the factual sufficiency
of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). When
evaluating motions brought under this subrule, a trial court must consider, in the light most
favorable to the nonmoving party, the parties’ affidavits, pleadings, depositions, admissions, and
other documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996). “A question of fact exists when reasonable minds could differ as to the conclusions to be
drawn from the evidence.” Dextrom, 287 Mich App at 416. A motion is properly granted under
this subrule if there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Quinto, 451 Mich at 362.

                               A. PREMISES LIABILITY CLAIM

        “In general, a premises possessor owes a duty to an invitee to exercise reasonable care to
protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the
land.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). That is,


4
  Although defendants cited MCR 2.116(C)(7), (8), and (10) in their motion for summary
disposition, on appeal they recognize that the proper court rule is MCR 2.116(C)(10).


                                                -3-
       [t]he landowner has a duty of care, not only to warn the invitee of any known
       dangers, but the additional obligation to also make the premises safe, which
       requires the landowner to inspect the premises and, depending upon the
       circumstances, make any necessary repairs or warn of any discovered hazards.
       [Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d 88
       (2000).]

A hospital patient can be characterized as an invitee. Turner v Northwest Gen Hosp, 97 Mich
App 1, 3; 293 NW2d 713 (1980). The landowner breaches the duty of care when it “knows or
should know of a dangerous condition on the premises of which the invitee is unaware and fails
to fix the defect, guard against the defect, or warn the invitee of the defect.” Hoffner v Lanctoe,
492 Mich 450, 460; 821 NW2d 88 (2012).

       As to physical dangers on the premises,

       [a] possessor of land is subject to liability for physical harm caused to his invitees
       by a condition on the land if the owner: (a) knows of, or by the exercise of
       reasonable care would discover, the condition and should realize that the
       condition involves an unreasonable risk of harm to such invitees; (b) should
       expect that invitees will not discover or realize the danger, or will fail to protect
       themselves against it; and (c) fails to exercise reasonable care to protect invitees
       against the danger. [Stitt, 462 Mich at 597.]

       Defendants submit that plaintiff failed to put forward sufficient evidence to establish that
defendants created the alleged puddle, knew of it, or should have known of it. We agree. The
Michigan Supreme Court has stated that “[t]o establish a claim of premises liability, the plaintiff
must be able to prove that the premises possessor had actual or constructive notice of the
dangerous condition at issue.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 9; 890 NW2d 344
(2016) (quotation marks and citation omitted). However, the burden to prove that a defendant
had notice remains with the plaintiff. Id. Indeed, the burden of proof belongs to a plaintiff to
demonstrate that a defendant knew about the hazard or should have known of it because of the
hazard’s character or the duration of its presence. Id. at 11. Here, plaintiff admitted in her
deposition that she never saw the puddle before the fall. She could not identify the liquid in any
way, nor could she recall its location, when it appeared, how long it was left uncleaned, or its
physical attributes. As such, there is no evidence to suggest that defendants knew or should have
known of the alleged dangerous condition. As a result, the trial court erred when it failed to
grant defendants’ motion for summary disposition on this count.

       Plaintiff’s reliance on the testimony of Reed, the registered nurse assigned to plaintiff,
and Hogains-West, a nursing assistant involved with plaintiff’s care, is misplaced. Reed
admitted that she administered Zofran to plaintiff’s IV bag shortly before the fall. And Hogains-
West stated that plaintiff was able to drink something before the fall, despite the physician’s
order that she was not to consume any food orally. Plaintiff put forward these statements as
evidence that the puddle may have been created by spilled medication or drink. But these
arguments are entirely speculative. Such speculation is not enough to survive a motion for
summary disposition brought under MCR 2.116(C)(10). Karbel v Comerica Bank, 247 Mich
App 90, 97-98; 635 NW2d 69 (2001).

                                                 -4-
              B. ORDINARY NEGLIGENCE AND MEDICAL MALPRACTICE

       The trial court dismissed plaintiff’s medical malpractice claim because it ruled that any
negligence claim sounded in ordinary negligence. We hold that the trial court erred because the
alleged negligence sounds in medical malpractice.

      Medical malpractice claims can be distinguished from claims of ordinary negligence in
two ways:

       First, medical malpractice can occur only within the course of a professional
       relationship. Second, claims of medical malpractice necessarily raise questions
       involving medical judgment. Claims of ordinary negligence, by contrast, raise
       issues that are within the common knowledge and experience of the [fact-finder].
       Therefore, a court must ask two fundamental questions in determining whether a
       claim sounds in ordinary negligence or medical malpractice: (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. If both these questions
       are answered in the affirmative, the action is subject to the procedural and
       substantive requirements that govern medical malpractice actions. [Bryant, 471
       Mich at 422 (quotation marks and citations omitted).]

        In this case, the parties do not dispute that the claimed injury resulted in the course of a
professional relationship. What matters, then, is whether the issue involves a question of
medical judgment beyond the realm of common knowledge and experience. While a layperson
may believe that a physician’s orders to limit a patient to bedrest and assist her to the bathroom
should be blindly and dutifully obeyed, this Court in Sturgis Bank & Trust Co v Hillsdale
Community Health Ctr, 268 Mich App 484, 498; 708 NW2d 453 (2005), has held:

       [A] nursing background and nursing experience are at least somewhat necessary
       to render a risk assessment and to make a determination regarding which safety or
       monitoring precautions to utilize when faced with a patient who is at risk of
       falling. While, at first glance, one might believe that medical judgment beyond
       the realm of common knowledge and experience is not necessary when
       considering [plaintiff]’s troubled physical and mental state, the question becomes
       entangled in issues concerning [plaintiff]’s medications, the nature and
       seriousness of the . . . injury, the degree of disorientation, and the various methods
       at a nurse’s disposal in confronting a situation where a patient is at risk of
       falling. . . . [T]here are numerous ways in which to address the risk, . . . all of
       which entail some degree of nursing or medical knowledge. . . . In sum, we find
       that, although some matters within the ordinary negligence count might arguably
       be within the knowledge of a layperson, medical judgment beyond the realm of
       common knowledge and experience would ultimately serve a role in resolving the
       allegations contained in this complaint.

        Here, plaintiff alleges that she was encouraged by the nursing staff to ambulate without
assistance. Such encouragement is an expression of the medical judgment of the nurse that

                                                -5-
plaintiff did not need assistance as determined by her physician. Indeed, it would be illogical to
conclude that the decision to deviate from a physician’s orders could be made by a layperson on
the basis of common knowledge and experience.

        Having established that the instant case sounds in medical malpractice and not ordinary
negligence, it is apparent that the trial court should have granted defendants’ motion for
summary disposition of plaintiff’s ordinary negligence claim. Accordingly, we reverse the trial
court’s denial of summary disposition on the ordinary negligence claim and reverse the trial
court’s dismissal of the medical malpractice claim, which was predicated on the court’s
erroneous conclusion that any claim of negligence sounded in ordinary negligence.

                                   C. RES IPSA LOQUITUR

        Defendants also argue that the trial court should have dismissed plaintiff’s res ipsa
loquitur claim. With our disposition of plaintiff’s ordinary negligence claim, this issue is
primarily moot. However, we will clarify a couple things. First, res ipsa loquitur is not an
independent cause of action. Instead, it is a doctrine that allows a plaintiff to receive “a
permissible inference of negligence from circumstantial evidence.” Jones v Porretta, 428 Mich
132, 150; 405 NW2d 863 (1987); see also 57B Am Jur 2d, Negligence, § 1176, p 419
(“According to most authorities, the doctrine of res ipsa loquitur is merely an evidentiary or
procedural rule, and not a rule of substantive law, and thus it does not create or constitute an
independent or separate ground of liability.”). Thus, it allows a plaintiff to prove a claim of
negligence through an alternative method under limited circumstances.5 As such, dismissal of
res ipsa loquitur as an independent claim is appropriate. Here, while the trial court did not
dismiss this as a separate claim, it nevertheless properly understood that it is not an independent
cause of action.6 Regardless, the claim should have been dismissed because there is no basis for




5
  A plaintiff can obtain a permissible inference of negligence from circumstantial evidence only
if the following four requirements are met:
       (1) the event must be of a kind which ordinarily does not occur in the absence of
       someone’s negligence;

       (2) it must be caused by an agency or instrumentality within the exclusive control
       of the defendant;

       (3) it must not have been due to any voluntary action or contribution on the part of
       the plaintiff; and

       (4) [e]vidence of the true explanation of the event must be more readily accessible
       to the defendant than to the plaintiff. [Woodard v Custer, 473 Mich 1, 7; 702
       NW2d 522 (2005) (quotation marks and citation omitted).]



                                               -6-
an independent cause of action based on res ipsa loquitur. This dismissal does not preclude
plaintiff from potentially relying on the doctrine for her medical malpractice claim, if she desires,
assuming she can meet the requirements.7

        Therefore, on remand, the trial court is to enter an order granting summary disposition in
favor of defendants on plaintiff’s counts related to premises liability, ordinary negligence, and
res ipsa loquitur. Because the trial court erred when it determined that plaintiff’s negligence
count sounded in ordinary negligence, we reverse its dismissal of plaintiff’s medical malpractice
claim.

                       III. DEFENDANTS’ MOTION TO COMPEL IME

       Defendants next argue that the trial court abused its discretion when it denied their
motion to compel plaintiff to submit to an IME. We disagree.

        This Court reviews a trial court’s decision on a motion to compel an IME pursuant to
MCR 2.311(A) for abuse of discretion. Burris v KAM Transp, Inc, 301 Mich App 482, 487; 836
NW2d 727 (2013). This standard acknowledges that there will be circumstances where there
will not be a single correct result. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d
809 (2006). Indeed, a trial court abuses its discretion when it selects an outcome that falls
outside the range of principled outcomes. Id.

       MCR 2.311(A) provides:

       When the mental or physical condition . . . of a party . . . is in controversy, the
       court in which the action is pending may order the party to submit to a physical or
       mental or blood examination by a physician (or other appropriate
       professional) . . . . The order may be entered only on motion for good cause with
       notice to the person to be examined and to all parties.

        “In the context of our court rules, ‘[g]ood cause simply means a satisfactory, sound or
valid reason [.]’ A trial court has broad discretion to determine what constitutes ‘good cause.’”
Thomas M Cooley Law Sch v Doe 1, 300 Mich App 245, 264; 833 NW2d 331 (2013), quoting
People v Buie, 491 Mich 294, 319; 817 NW2d 33 (2012). Because plaintiff brought a suit
seeking damages for physical injuries, it appears on its face that defendants had good cause to
request the IME. See Burris, 301 Mich App at 490 (“A plaintiff in a negligence action who


6
  When the trial court ruled that plaintiff’s premises liability claim and her ordinary negligence
claim survived summary disposition, it also stated that “res ipsa remains, not as an independent
cause of action, of course.”
7
  Although it seems unlikely that res ipsa loquitur would be of any help because plaintiff’s
allegation related to the medical malpractice claim mostly relates to the specific act that the
nursing staff did not provide assistance when plaintiff went to the restroom in the middle of the
night.


                                                 -7-
asserts mental or physical injury places that mental or physical injury clearly in controversy and
provides the defendant with good cause for an examination to determine the existence and extent
of such asserted injury.”) (quotation marks and citation omitted). Plaintiff, however, claims that
good cause is wanting because, in this instance, all of plaintiff’s treating physicians appear to be
affiliated with defendant hospital. This fact could tend to indicate that defendants have the
ability to obtain the desired medical information without resort to an IME, which suggests that an
IME might be inappropriate. See Schlagenhauf v Holder, 379 US 104, 118; 85 S Ct 234; 13 L
Ed 2d 152 (1964) (“The ability of the movant to obtain the desired information by other means is
also relevant.”).

        However, regardless of whether good cause for the IME was established, we hold that the
trial court did not abuse its discretion when it denied defendants’ motion because the motion was
untimely.

        Plaintiff filed her complaint on November 12, 2015, and the deadline for discovery was
subsequently set to be October 12, 2016. On June 24, 2016, defendants filed a request that
plaintiff submit to an IME, which provided in part that “Defendants shall advise Plaintiffs of the
names and locations of the examining physicians.” On October 5, 2016, or seven days before
discovery ended, defense counsel sent a letter to plaintiff’s counsel indicating that a doctor was
available to perform an IME on plaintiff on November 7, November 21, or November 28, 2016.
The last of these dates was the date set for trial. On October 12, 2016, the day discovery ended,
defendants moved to compel plaintiff to submit to the IME. The trial court denied the request
because it was untimely.

       The trial court’s decision does not fall outside the range of principled outcomes.
Although defendants requested that plaintiff submit to an IME on June 24, 2016, they did not
follow up with plaintiff until over three months had elapsed, when discovery was nearly over.
Moreover, the request for the IME was for one of three dates, all of which were after the October
12, 2016 close of discovery. Thus, under these circumstances, we cannot conclude that the trial
court abused its discretion.

                              IV. SCOPE OF RELIEF ON APPEAL

        Our disposition of these issues requires that we determine whether any claim survives
this appeal. Plaintiff did not cross-appeal the trial court’s dismissal of the medical malpractice
claim. As a general matter, “[i]n the absence of a cross appeal, errors claimed to be prejudicial
to appellee cannot be considered nor may appellee have an enlargement of relief.” McCardel v
Smolen, 404 Mich 89, 95 n 6; 273 NW2d 3 (1978) (quotation marks and citation omitted). Thus,
by ordering summary disposition as to the premises liability, ordinary negligence, and res ipsa
loquitur claims, and absent some further order, all of plaintiff’s claims will have been dismissed:
the premises liability, ordinary negligence, and res ipsa loquitur claims by order of this court, and
the medical malpractice claim by order of the trial court, which plaintiff did not appeal. As a
result, we must consider the effect, if any, our order reversing the denial of summary disposition
has on the medical malpractice claim.

       The scope of the relief at issue in the present appeal is defined by the terms of the order
granting leave to appeal. MCR 7.205(E)(4). The order granting leave to appeal states that the

                                                -8-
appeal “is limited to the issues raised in the application and supporting brief.” The application
for leave to appeal, in turn, states as the first issue, “The trial court should have dismissed the
‘premises liability’, ‘ordinary negligence’, and ‘res ipsa loquitur’ claims, and allowed plaintiffs
to proceed solely on a medical malpractice theory as medical malpractice was the only viable
claim.” Because defendants sought to appeal on the basis that a reversal of the trial court’s order
would result in a viable claim of medical malpractice and because leave to appeal was limited to
issues raised in the application, our order reversing the denial of summary disposition necessarily
has the effect of reviving the medical malpractice claim.

                                       V. CONCLUSION

        We reverse the trial court’s denial of defendants’ motion for summary disposition with
respect to the independent claims of premises liability, ordinary negligence, and res ipsa loquitur.
For the reasons stated in Part IV of this opinion, we also reverse the trial court’s dismissal of
plaintiff’s medical malpractice claim. However, we affirm the trial court’s denial of defendants’
motion to compel plaintiff to submit to an IME.

        As a result, we remand for proceedings consistent with this opinion. We do not retain
jurisdiction. No taxable costs, as neither party prevailed in full. MCR 7.219.

                                                             /s/ Michael J. Talbot
                                                             /s/ Patrick M. Meter
                                                             /s/ Jonathan Tukel




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