             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


ESTATE OF JASON A. BLACKWELL, by PENNY                                 UNPUBLISHED
COLE, Personal Representative,                                         August 13, 2020

               Plaintiff-Appellant/Cross-Appellee,

v                                                                      No. 346652
                                                                       Saginaw Circuit Court
ST. MARY’S OF MICHIGAN doing business as ST.                           LC No. 15-028060-NH
MARY’S OF MICHIGAN HOSPITAL,

               Defendant-Appellee/Cross-Appellant.


Before: FORT HOOD, P.J., and JANSEN and TUKEL, JJ.

JANSEN, J. (concurring in part, dissenting in part).

        I concur with the majority’s ultimate conclusion that the trial court did not abuse its
discretion by excluding Timothy F. Hawkins’ expert opinion. I write separately because I agree
with the trial court’s reasoning that although Hawkins was qualified under MCL 600.2169 to
provide expert testimony on the standard of care for defendant’s hospital administrators in
developing and implementing a Code Blue policy, Hawkins’ expert opinion was nevertheless
inadmissible under MRE 702. In my view, Hawkins’ expert opinion was not rationally derived
from a solid foundation. I also agree with the majority that Dr. Dennis Doblar and Dr. Paul Allen
were unqualified to offer standard of care testimony in relation to plaintiff’s hospital administration
claims.

        However, I disagree with the majority that plaintiff had presented sufficient evidence of
causation to support her nursing malpractice claims. Because I would affirm the trial court’s order
granting summary disposition in favor of defendants on plaintiff’s nursing malpractice claims, I
respectfully dissent.

                              I. HAWKINS’ EXPERT TESTIMONY

       Plaintiff argues that the trial court abused its discretion by concluding Hawkins’ expert
testimony was inadmissible. Like the majority, I disagree.




                                                 -1-
        This Court reviews for an abuse of discretion a trial court’s ruling regarding the
qualifications of an expert witness. Crego v Edward W Sparrow Hosp Ass’n, 327 Mich App 525,
531; 937 NW2d 380 (2019). A court abuses its discretion when its decision falls outside the range
of reasonable and principled outcomes. Id. We review de novo a trial court’s decision on a motion
for summary disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d
665 (2019). In challenging Hawkins’s qualifications, defendant moved for summary disposition
under MCR 2.116(C)(10). In El-Khalil, our Supreme Court explained:

               A motion under MCR 2.116(C)(10), . . . , tests the factual sufficiency of a
       claim. Johnson v VanderKooi, 502 Mich 751, 761; 918 NW2d 785 (2018). When
       considering such a motion, a trial court must consider all evidence submitted by the
       parties in the light most favorable to the party opposing the motion. Id. A motion
       under MCR 2.116(C)(10) may only be granted when there is no genuine issue of
       material fact. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5; 890 NW2d 344 (2016).
       “A genuine issue of material fact exists when the record leaves open an issue upon
       which reasonable minds might differ.” Johnson, 502 Mich at 761 (quotation marks,
       citation, and brackets omitted in original).

 A. WHETHER HAWKINS IS QUALIFIED TO TESTIFY REGARDING THE STANDARD
               OF CARE FOR HOSPITAL ADMINISTRATORS

        To succeed on a claim of malpractice, a plaintiff is required to demonstrate (1) the standard
of care, (2) a breach of that standard of care, (4) injury, and (4) proximate causation between the
injuries and the alleged breach of the standard of care. Lanigan v Huron Valley Hosp, Inc, 282
Mich App 558, 565; 766 NW2d 896 (2009). When a party offers expert testimony, it is the trial
court’s obligation to act as a gatekeeper to ensure that the expert’s qualifications, as well as the
testimony itself, meets the threshold standards under the law. Gay v Select Specialty Hosp, 295
Mich App 284, 813 NW2d 354 (2012).

         Count I of plaintiff’s first amended complaint alleged that defendant’s hospital
administrators failed to adopt internal policies and procedures for responding to a Code Blue
within any area of the hospital. Plaintiff specifically alleged that defendant’s administrators did
not adopt an appropriate plan and procedure to ensure that the ICU was properly staffed to respond
to a Code Blue in a timely manner. According to plaintiff, administrators should have ensured that
the ICU was staffed with an in-house physician, or that a physician was immediately available for
consult, particularly with respect to issues involving a patient’s airway or respiratory issues.
Plaintiff alleged that as a result of these breaches of the standard of care, Jason Blackwell did not
receive appropriate care and treatment because (1) he was not treated by an anesthesiologist,
trauma surgeon, emergency room physician, or other qualified physician, and (2) he did not receive
adequate airway management at the necessary time, which ultimately led to his death. Plaintiff
offered Hawkins’ testimony to bolster her claims. At issue here is whether Hawkins was qualified
to testify concerning the standard of care for a hospital administrator.

       MCL 600.2169 provides, in pertinent part:

              (1) In an action alleging medical malpractice, a person shall not give expert
       testimony on the appropriate standard of practice or care unless the person is


                                                -2-
licensed as a health professional in this state or another state and meets the
following criteria:

        (a) If the party against whom or on whose behalf the testimony is offered is
a specialist, specializes at the time of the occurrence that is the basis for the action
in the same specialty as the party against whom or on whose behalf the testimony
is offered. However, if the party against whom or on whose behalf the testimony
is offered is a specialist who is board certified, the expert witness must be a
specialist who is board certified in that specialty.

        (b) Subject to subdivision (c), during the year immediately preceding the
date of the occurrence that is the basis for the claim or action, devoted a majority
of his or her professional time to either or both of the following:

        (i) The active clinical practice of the same health profession in which the
party against whom or on whose behalf the testimony is offered is licensed and, if
that party is a specialist, the active clinical practice of that specialty.

        (ii) The instruction of students in an accredited health professional school
or accredited residency or clinical research program in the same health profession
in which the party against whom or on whose behalf the testimony is offered is
licensed and, if that party is a specialist, an accredited health professional school or
accredited residency or clinical research program in the same specialty.

        (c) If the party against whom or on whose behalf the testimony is offered is
a general practitioner, the expert witness, during the year immediately preceding
the date of the occurrence that is the basis for the claim or action, devoted a majority
of his or her professional time to either or both of the following:

       (i) Active clinical practice as a general practitioner.

       (ii) Instruction of students in an accredited health professional school or
accredited residency or clinical research program in the same health profession in
which the party against whom or on whose behalf the testimony is offered is
licensed.

        (2) In determining the qualifications of an expert witness in an action
alleging medical malpractice, the court shall, at a minimum, evaluate all of the
following:

       (a) The educational and professional training of the expert witness.

       (b) The area of specialization of the expert witness.

        (c) The length of time the expert witness has been engaged in the active
clinical practice or instruction of the health profession or the specialty.

       (d) The relevancy of the expert witness’s testimony.


                                          -3-
        The record before us indicates that Hawkins is board-certified in hospital administration
and holds the designation of a Fellow of the American College of Healthcare Executives. Hawkins
also has a bachelor’s degree and a master’s degree in business administration from the University
of Akron. At the time he was deposed in this case, Hawkins worked part time in hospital
administration expert witness consulting, and from 2009 until 2012, he served as the executive
vice president and chief operating officer of the Villages Regional Hospital, which is part of the
Central Florida Health Alliance. Previously, Hawkins served as the senior vice president of
clinical services for Central Florida Health Alliance from 2008 to 2009, he was the senior vice
president and chief administrative officer of Thompson Cancer Survival Centers from 2007 to
2008, and he was the vice president of clinical services for Baptist Hospital of Miami from 1999
to 2007. Hawkins also worked at Mercy Hospital as the vice president of support services, the
administrative director of support services, and the director of materials management.
Additionally, Hawkins worked as the assistant director of materials management, and as director
and assistant director of purchasing for Akron City Hospital. Hawkins also sat on the Board of
Directors for the University of Miami Masters in Healthcare Administration Advisory Board
during an unspecified period.

        In my view, the trial court did not abuse its discretion in concluding that Hawkins’s
qualifications satisfy the requirements of MCL 600.2169 because he is board-certified in hospital
administration, having worked in that capacity for more than 10 years before testifying in this case,
he was a hospital safety manager, and in the year preceding the alleged malpractice he devoted a
majority of his professional time to the active clinical practice of hospital administration. MCL
600.2169(1)(b)(i). The trial court also considered Hawkins’s “educational and professional
training,” that hospital administration was his area of specialization, and the length of time that
Hawkins had devoted his professional career to hospital administration, as required by MCL
600.2169(2)(a), (b), and (c). The trial court’s decision that Hawkins was qualified under MCL
600.2169 to testify regarding the standard of care for hospital administration is within the range of
reasonable and principled outcomes.

    B. WHETHER HAWKINS’S OPINION IS THE PRODUCT OF RELIABLE PRINCIPLES
                              AND METHODS

       Although I believe Hawkins was qualified under MCL 600.2169, I do not believe his
opinion was the product of reliable principles and methods, and that his testimony was properly
excluded on that basis.

         In his deposition, Hawkins described that the Joint Commission1 and other regulatory
bodies require that hospitals put in place policies to deal with “cardiac and respiratory and other
critical issues.” He added:

       Then the hospitals, themselves, will administratively put together a code blue policy
       and procedure in conjunction with the clinical staff, the nursing staff, and the


1
  The Joint Commission was founded in 1951 and accredits and certifies more than 22,000
hospitals around the United States. The Joint Commission also develops standards that focus on
patient safety and quality of care.


                                                -4-
       medical staff of the hospital on how we’re going to deal with cardiac arrests,
       respiratory arrests, other critical natures of that – or things of that nature. And it
       may not be called code blue. It could be code red. It could be code rescue. It could
       have any number of names.

Such a policy is developed not only for regulatory purposes, but also to address the patient-care
needs of the hospital. Hawkins also explained that a small community hospital may have a
different policy and procedure for a Code Blue than a major teaching hospital, such as defendant’s
hospital. This is because larger hospitals that are trauma centers may perform surgeries and
provide services that a smaller hospital does not. Because the needs of a hospital may vary, the
Joint Commission “is not prescriptive in its policy and procedure standards” and will allow each
hospital to develop its own policies and procedures.

         Hawkins opined that Dr. Vinay Shah, M.D., a second-year resident who responded to the
Code Blue, did not have the proper training to attend to Blackwell when he coded on the morning
of March 17, 2012, because Dr. Shah had never revised a tracheotomy tube. While Hawkins
described defendant’s Code Blue policy as “comprehensive,” the one thing he believed was
missing was “adequate implementation.” Hawkins expressed his concern that Dr. Shah had
testified that he was not aware that a Code Blue policy existed for the hospital, and particularly
that he had not been trained with regard to it and was not familiar with its requirements. After
acknowledging that Dr. Shah had contacted the anesthesiology department, the emergency
department, and Dr. Hackett, Hawkins elaborated with respect to how implementation of the Code
Blue policy was not handled effectively by defendant:

               Yes, [Dr. Shah] called the – or he instructed the unit clerk or somebody, the
       clerical individual that was attending the code, to call those individuals. He
       neglected to call the . . . intensivist that was on call for the surgical ICU. When he
       realized that he needed additional help, he called those other specialties.

               Part of the policy and procedure, in order for it to be effective, is the
       administration of the hospital, which my counterparts at St. Mary’s are responsible
       for providing the proper trained individuals to provide service under that policy. . .
       .

               Since this was a surgical ICU, the hospital administration has a
       responsibility for some arrangement with someone that can deal with surgical ICU
       cases. In my past experience, we used the emergency room physicians. As part of
       their emergency room contract, they would attend all code blues, or intensivists.

               We had a contract for 24-7 to have intensive care physicians in our facilities.
       The intensivists would then deal with a patient like Patient Blackwell. So they
       would arrive on scene at the same time as Dr. Shah. Dr. Shah, being a student, a
       resident physician, would be there to perform the procedures under the guidance of
       a fellowship-trained ER physician or a fellowship-trained intensivist or a surgeon.

                                              * * *




                                                -5-
              The – on a nursing unit outside of the intensive care setting, you would
       expect to find respiratory arrests and cardiac arrests. In those areas, the internal
       medicine resident and physicians are trained to deal with those using [Advanced
       Cardiovascular Life Support (ACLS)][2] protocols, which are nationally-publicized
       published protocols. And they’ll follow those protocols and treat the patient.

               In the surgical ICU, there are no nationally publicized protocols for a
       surgical code. It depends upon what that particular patient needs, which is why
       there’s a higher standard in the intensive care unit, which is why you have the
       intensive care unit to begin with.

               And these codes should be attended by somebody that’s fellowship trained
       in either emergency medicine or as a surgical intensivist.

        Hawkins also observed that defendant’s hospital essentially provided two standards of care,
one during the dayshift hours during the week when an intensivist would be on staff and ready to
assist with a Code Blue, and another after the dayshift was over, when the Code Blue was turned
over to a second-year medical resident and there was no fellowship-trained physician on site to
treat the patients in the surgical ICU. When asked how defendant could have complied with the
standard of care, Hawkins explained:

               The stand—the national standards of care with the Joint Commission
       require the hospital, if they’re going to provide a service, then they have to have
       qualified staff to – to take care of those patients that – that are in the hospital. So
       if you’re going to perform surgery and have a surgical ICU, you have to have
       qualified individuals, not just on the dayshift, Monday through Friday, but 24-7.
       the Joint Commission will not allow us to provide physical therapy services just
       Monday through Friday. It’s you know, as simple as that.

               When you get to critical care services, they expect them 24-7. So the patient
       that codes at noon receives the same level of care that -- of the patient that codes
       at midnight. Those are standards that the Joint Commission sets, that you cannot
       have two standards of care unless that standard of care – unless the treatment of
       that patient would not result in a negative outcome.

              Well, when you’re dealing with code blues, if you’ve got the expert
       fellowship physicians that are treating the patient during the daytime and a second-
       year resident treating them at night, and it’s only a matter of time before one of
       those patients that are coding at night has an out—a bad outcome because the expert
       wasn’t there with them.




2
 Hawkins described that ACLS protocols are published by the American Heart Association for
patients who have cardiac or respiratory arrest and there are “specific steps that are medications
and steps that take place during the code that are followed nationwide.”


                                                -6-
Hawkins clarified that to satisfy the standard of care, defendant must not only develop an
appropriate Code Blue policy, but implement it as well.

        Hawkins stated that he stepped down from his position as Chief Executive Officer (CEO)
of the Villages Hospital in 2012 after a new CEO was selected and chose to bring his own
administrative team. Hawkins had not held an executive position in a hospital since that time, and
he had never worked in a hospital in Michigan. Hawkins also conceded that he did not contact
any local hospital administrators in the Saginaw area, or any other health system in Michigan,
when preparing his opinion in this case. Hawkins also agreed that he had not had primary
responsibility for drafting a policy or procedure for ICU management. Hawkins agreed that while
the Joint Commission standards do not list specific individual disciplines that are required to be
on a Code Blue team, the standards “specifically state that the members of the code team who are
providing the clinical services have the training to perform whatever it is you’re requesting them
to perform.” However, the Joint Commission does not list a specific set of skills that must be held
by a member of a Code Blue team. Those standards also do not require that an intensivist, critical
care medicine specialist, or an anesthesiologist be in-house in a hospital around-the-clock.
Additionally, the hospital at which Hawkins served as CEO, the Villages Hospital, was not a
teaching hospital or trauma center, and it did not have a residency program.

        In his first deposition in June 2017, Hawkins stated that he was relying on the Joint
Commission standards in formulating his opinion, the first being LD-03.606.01, which requires
that hospitals provide “for a sufficient number and mix of individuals to support safe, quality care,
treatment and services.” The standard further required that “[t]he number and mix of individuals
[be] appropriate to the scope and complexity of the services offered,” but it did not list specific
disciplines that are required. The next standard that Hawkins relied on, LD-04.0307, provides that
patients with comparable needs receive the same standard of care and treatment throughout the
hospital. Hawkins offered this opinion regarding how defendant breached this standard of care:

                The primary opinions that I have regarding the code coverage is that the two
       standard of care standards from the Joint Commission [were] violated because
       during the day the codes – the patients are attended to and codes attended to by the
       intensive care physician who’s a fellowship trained physician capable of dealing
       with endotracheal tubes and tracheotomies and the care and maintenance of those.
       After hours, according to deposition testimony, a second-year resident who
       admitted that he had no experience with tracheotomy tubes, and Mr. Blackwell was
       the first tracheotomy tube that he had dealt with, is the physician that attended to
       him during the code.

               So there’s two standards of care taking place. We’ve got a fellowship
       trained physician if you have an arrest or a medical emergency during the day, and
       you have a second-year resident treating you medically after hours.

Hawkins also stated that he would “expand” his criticism to defendant’s hospital administration
because it did not compel an emergency room physician to attend the Code Blue, unless that
physician was already involved with a Code Blue in the emergency room. According to Hawkins,
defendant’s staff ought to have contacted an intensivist to come to Blackwell’s bedside to rectify
the problem with his airway and the proper chain in command to allow that to happen was not in


                                                -7-
place. Hawkins also elaborated that an emergency room physician ought to have been summoned
to the ICU to deal with Blackwell, who at that point was in extremis. While acknowledging that
the Joint Commission standards do not require that a hospital have an intensivist in-house around-
the-clock, Hawkins emphasized that whatever services are provided during the day shift must also
be provided to patients during the night shift.

         MRE 702 provides:

                  If the court determines that scientific, technical, or other specialized
         knowledge will assist the trier of fact to understand the evidence or to determine a
         fact in issue, a witness qualified as an expert by knowledge, skill, experience,
         training, or education may testify thereto in the form of an opinion or otherwise if
         (1) the testimony is based on sufficient facts or data, (2) the testimony is the product
         of reliable principles and methods, and (3) the witness has applied the principles
         and methods reliably to the facts of the case. [Emphasis added.]

In Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469
(1993), the United States Supreme Court referred to a dictionary definition in interpreting the word
“knowledge” in FRE 702,3 the federal counterpart to MRE 702. The Court observed that “the
word ‘knowledge’ connotes more than subjective belief or unsupported speculation. The term
‘applies to any body of known facts or to any body of ideas inferred from such facts or accepted
as truths on good grounds.’ ” Daubert, 509 US at 590, quoting Webster’s Third New International
Dictionary 1252 (1986). The Court stated: “In short, the requirement that an expert’s testimony
pertain to ‘scientific knowledge’ [as set forth in FRE 702] establishes a standard of evidentiary
reliability.” Daubert, 509 US at 590.

        Similarly, in Gilbert v DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004),
our Supreme Court emphasized that the trial court’s important role as a gatekeeper applies at all
stages of the analysis concerning an expert witness, and that MRE 702 requires a “searching
inquiry” not only of the data underlying the expert’s opinion, “but also of the manner in which the
expert interprets and extrapolates from those data.” (Emphasis added.) The Court stated:

         Thus, it is insufficient for the proponent of expert opinion merely to show that the
         opinion rests on data viewed as legitimate in the context of a particular area of
         expertise (such as medicine). The proponent must also show that any opinion based
         on those data expresses conclusions reached through reliable principles and
         methodology. [Id.]




3
    In Daubert, 509 US at 588, the Court quoted FRE 702 as follows:
                 If scientific, technical, or other specialized knowledge will assist the trier of
         fact to understand the evidence or to determine a fact in issue, a witness qualified
         as an expert by knowledge, skill, experience, training, or education, may testify
         thereto in the form of an opinion or otherwise.



                                                   -8-
        The Court in Gilbert further cautioned that how an expert interprets and applies the data
that the expert relies on in formulating an opinion is a pivotal consideration for the trial court in
assessing the reliability of that testimony. The Court explained:

               When a court focuses its MRE 702 inquiry on the data underlying expert
       opinion and neglects to evaluate the extent to which an expert extrapolates from
       those data in a manner consistent with Davis–Frye (or now Daubert), it runs the
       risk of overlooking a yawning “analytical gap” between that data and the opinion
       expressed by an expert. As a result, ostensibly legitimate data may serve as a Trojan
       horse that facilitates the surreptitious advance of junk science and spurious,
       unreliable opinions.

                                               * * *

               As shown, MRE 702 establishes preconditions for the admission of expert
       opinion. Such testimony must be rooted in “recognized scientific, technical, or other
       specialized knowledge” and must assist the trier of fact. The burden is on the party
       offering the expert to satisfy the preconditions established by MRE 702.

                Where the subject of the proffered testimony is far beyond the scope of an
       individual’s expertise—for example, where a party offers an expert in economics
       to testify about biochemistry—that testimony is inadmissible under MRE 702. In
       such cases, it would be inaccurate to say that the expert’s lack of expertise or
       experience merely relates to the weight of her testimony. An expert who lacks
       “knowledge” in the field at issue cannot “assist the trier of fact.” [Id. at 783, 789
       (emphasis in original).]

        In the instant case, the trial court observed that while the Joint Commission standards that
Hawkins relied on were not themselves reliable, Hawkins, without training as a physician or
intensivist, used his professional experience as a hospital administrator and surgical technician to
generate a more specific standard of care applicable to defendant in the implementation and
development of the Code Blue policy. The trial court also correctly observed that Hawkins had
not worked (1) in hospital administration in a Michigan hospital, (2) in a teaching hospital with
residents, (3) and notably, had not carried primary responsibility for drafting a Code Blue policy
for the ICU or a teaching hospital that is staffed with residents. Also persuasive in the trial court’s
analysis is that Hawkins’s medical experience was limited to working as a surgical technician in
the 1970s, and he did not work with medical practitioners in determining what he thought should
be the standard of care applicable to defendant in its development and implementation of the Code
Blue policy.

       While relying on the Joint Commission standards to formulate his opinion concerning the
standard of care, Hawkins expanded, beyond the four corners of the Joint Commission standards,
on what he believed defendant was required to do to comply with the standard of care. Hawkins
also conceded that the requirements of a Code Blue policy will vary depending on the size, needs,
resources, and functionality of a hospital, and that such policies are drafted with the input and
oversight of the physicians and nurses working in the departments to which the policies are
applicable. However, Hawkins was not trained as a physician, had not worked in a Level II trauma


                                                 -9-
center or a teaching hospital staffed by residents, and his clinical experience was limited. In my
view, without knowledge of a specific hospital’s resources and staffing needs, Hawkins simply did
not have the requisite knowledge to provide a reliable opinion regarding the implementation of a
Code Blue policy at defendant’s hospital. The trial court concluded that Hawkins’s opinion was
not reliable because of the significant gap between the Joint Commission standards and the opinion
Hawkins expressed regarding the standard of care. Under these circumstances, the trial court’s
decision does not fall outside the range of reasonable and principled outcomes, and therefore, it
did not constitute an abuse of discretion.

                             II. NURSING MALPRACTICE CLAIM

       I disagree with the majority that the trial court erred in dismissing plaintiff’s nursing
malpractice claim. Because I do not believe plaintiff has established the requisite element of
causation, I would affirm.

       The issue with plaintiff’s nursing malpractice claim, as noted, is that plaintiff fails to
present any evidence that the alleged breaches of the standard of cause were causally linked to
Blackwell’s death. In a medical malpractice action, a plaintiff is required to prove causation by a
preponderance of the evidence. Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004).
Proximate cause is a legal term of art that includes both cause-in-fact and proximate causation. Id.
See also MCL 600.2912a(2). The plaintiff is required to put forth evidence that causally links the
alleged breach in the standard of care to plaintiff’s injuries in order to be successful. Id. at 90.

        The issue, as I see it, with plaintiff’s nursing malpractice claim is that plaintiff has failed
to present any evidence that any breach in the standard of care by attending nurse Sara Enser, RN,
was the proximate cause of Blackwell’s death. In granting summary disposition in favor of
defendant, the trial court examined the testimony of plaintiff’s only two causation experts: Dr.
Allen and Dr. Doblar. Dr. Allen offered the opinion that Blackwell’s death occurred as “a result
of having his trach tube dislodged, and . . . nobody [was] present who could, who was able to first
understand the situation, and second to fix the situation.” It was Dr. Allen’s opinion that someone
capable of adequately recognizing and addressing the situation, as well as someone capable of
monitoring a freshly placed trach tube that could become dislodged, should have been available at
all times. Similarly, Dr. Doblar further opined that the proximate cause of Blackwell’s death was
that the proper staff failed to response after Code Blue was called.

       Neither of plaintiff’s causation experts opined that defendant’s nursing staff breached the
standard of care, and that breach proximately caused Blackwell’s death. Where plaintiff has failed
to present any evidence that Blackwell’s death was proximately caused by Ensor or any other
nursing staff, plaintiff cannot establish the requisite element of causation to sustain a nursing
malpractice claim, and summary disposition in favor of defendant was appropriate.

        In reaching the contrary conclusion, the majority accepts the testimony of Kaisa Ring, RN,
as expert witness testimony on the relevant standard of care for nurses, and further relies on King’s
testimony in concluding that a question of fact remained regarding causation. However, nowhere
in Michigan jurisprudence has a court concluded that a nurse is permitted to testify concerning
proximate causation in a nursing malpractice action. Additionally, the CJS Evidence, § 868,
states:


                                                 -10-
       Generally, while a registered nurse may possess the education and skill necessary
       to testify as to the standard of care of a patient’s treating nurses, a nurse is not
       competent to testify as to the patient’s cause of death; consequently, a medical
       doctor must still generally connect the patient’s death to the alleged nursing
       deficiencies.

        The majority fails to engage in any analysis on this issue, specifically whether nurses
should be permitted to offer expert testimony to establish causation before relying on Ring’s
testimony to do just that. I would conclude that given Ring’s education, training, and time spent
as a registered nurse, and the language of MCL 333.17201(1)(c), which limits the scope of the
practice of nursing, Ring was not qualified to provide a medical opinion concerning wehtehr the
failure of defendant’s nursing staff to engage in particular interventions were in the cause-in-fact
and proximate cause of Blackwell’s death. See MCL 333.17201(1)(c), which defines the practice
of nursing as

       the systematic application of substantial specialized knowledge and skill, derived
       from the biological, physical, and behavioral sciences, to the care, treatment,
       counsel, and health teaching of individuals who are experiencing changes in the
       normal health processes or who require assistance in the maintenance of health and
       the prevention or management of illness, injury, or disability.

Additionally, MCL 333.17201(1)(e) further defines a registered professional nurse or “r.n.” as

       an individual who is licensed under this part to engage in the practice of nursing
       which scope of practice includes the teaching, direction, and supervision of less
       skilled personnel in the performance of delegated nursing activities.

        Compare with MCL 333.17001(1)(f), which defines a “physician” as “an individual who
is licensed or authorized under this article to engage in the practice of medicine.” Likewise, the
practice of medicine is defined by MCL 333.17001(1)(j) as

       the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment,
       defect, complaint, or other physical or mental condition, by attendance, advice,
       device, diagnostic test, or other means, or offering, undertaking, attempting to do,
       or holding oneself out as able to do, any of these acts.

                                       III. CONCLUSION

        On the basis of the foregoing, I would affirm the trial court’s April 30, 2018 opinion and
order, the trial court’s May 3, 2018 supplemental opinion and order, and the trial court’s
September 27, 2018 opinion and order.


                                                             /s/ Kathleen Jansen




                                               -11-
