            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ESTATE OF JOSEPH JEROME FALARSKI, by                                 UNPUBLISHED
JOSEPH J. FALARSKI, Personal Representative,                         March 14, 2019

               Plaintiff-Appellee,

v                                                                    No. 343494
                                                                     Court of Claims
DEPARTMENT OF MILITARY AND                                           LC No. 17-000332-MZ
VETERANS AFFAIRS and GRAND RAPIDS
HOME FOR VETERANS,

               Defendants-Appellants.


Before: SAWYER, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

        Defendants appeal from an order of the court of claims denying their motion for summary
disposition. We affirm.

        Decedent was admitted to the Grand Rapids Home for Veterans in 2015. He had a
history of Alzheimer’s disease and was unable to care for himself. He was also identified as
having a very high risk of falling and in need of assistance with walking and transfers.
Decedent’s care plan at the facility included a “fall care plan” to prevent him from falling and
injuring itself. But, according to plaintiff, after residing at the facility for slightly two months,
decedent fell twice within three days. He suffered multiple fractures and died three days after
the second fall due to complications from the fractures.

       Plaintiff filed the instant action alleging ordinary negligence, medical malpractice, and
vicarious liability. Plaintiff’s complaint does not identify any particular agents or employees by
name. In lieu of filing an answer, defendants moved for summary disposition, arguing that the
ordinary negligence claim does not fall within an exception to governmental immunity and that
the medical malpractice claim, and by extension the vicarious liability claim, fails to state a
claim because it does not identify any specific agent who committed malpractice. The trial court
denied the motion and defendants now appeal.




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       The primary issue presented is whether the exception to immunity found in MCL
691.1407(4) only applies to medical malpractice, or whether it also applies to ordinary
negligence which occurs in the course of medical care or treatment. That statute provides as
follows:

               (4) This act does not grant immunity to a governmental agency or an
       employee or agent of a governmental agency with respect to providing medical
       care or treatment to a patient, except medical care or treatment provided to a
       patient in a hospital owned or operated by the department of community health or
       a hospital owned or operated by the department of corrections and except care or
       treatment provided by an uncompensated search and rescue operation medical
       assistant or tactical operation medical assistant.

        In interpreting a statute, we endeavor to determine and give effect to the intent of the
Legislature. McLean v McElhaney, 289 Mich App 592, 598; 798 NW2d 26 (2010). Where the
language is clear and unambiguous, so is the legislative intent and there is no need for further
judicial construction. Id. We find that to be the case here. Moreover, we recognize that
exceptions to governmental immunity are to be narrowly construed. Id.

        Defendants argue that the plain language of this statute, particularly in light of the word
“patient,” applies only to allegations of medical malpractice. The trial court, however, rejected
this view, opining as follows:

               The primary point of contention concerns the meaning of “medical care or
       treatment” as used in MCL 691.1407(4). The Court of Appeals has remarked that
       the phrase “medical care or treatment” is a “broad phrase” that “does not contain
       any language restricting or limiting the exception to medical care or treatment of
       physical illness or disease alone.”16 And in the context of caselaw determining
       whether a particular claim sounds in ordinary negligence or medical malpractice,
       this state has long adhered to the view that the phrase “medical care” can
       encompass claims for both ordinary negligence and medical malpractice.17 As
       explained by our Supreme Court in one of the leading cases in this area, “[t]he
       fact that an employee of a licensed health care facility was engaging in medical
       care at the time the alleged negligence occurred means that the plaintiff’s claim
       may possibly sound in medical malpractice; it does not mean that the plaintiff’s
       claim certainly sounds in medical malpractice.”18 Stated otherwise, Michigan has
       long adhered to the view that a claim arising during the course of medical care
       provided to a patient can sound in ordinary negligence, depending upon the facts
       of the case and the alleged negligent conduct.19

               Our Supreme Court has explained that medical malpractice claims are
       distinguished from claims of ordinary negligence by two characteristics: “First,
       medical malpractice can occur only within the course of a professional
       relationship. Second, claims of medical malpractice necessarily raise questions
       involving medical judgment.”20 Contrastingly, a claim for ordinary negligence



                                                -2-
involves only “issues that are within the common knowledge and experience of
the [fact-finder].”21 A claim for ordinary negligence in the context of medical care
can arise when “[n]o expert testimony is necessary to determine whether
defendant’s employees should have taken some sort of corrective action to
prevent future harm after learning of [a] hazard.”22

        Returning to the instant case, the Court concludes that the exception
contained in MCL 691.1407(4) applies to claims for medical malpractice as well
as claims of ordinary negligence that arise during the course of the provision of
medical care or treatment to a patient. Nothing in the plain language of the statute
constrains the abdication of immunity to only claims involving the application of
medical knowledge to a patient, i.e., a medical malpractice claim.23 Yet,
defendants would have this Court hold that the phrase “with respect to providing
medical care or treatment to a patient” only implicates medical malpractice
claims.      This phrase plainly implicates the “professional relationship”
characteristic of a medical malpractice claim, because it uses the word “patient.”
However, the plain language of MCL 691.1407(4) does not only implicate the
“questions involving medical judgment” prong of a medical malpractice claims,
such that it should be limited to claims alleging medical malpractice. Caselaw has
long held that terms such as “medical care” or “patient treatment” do not
exclusively refer to the exercise of medical judgment. Hence, the Court
concludes that the term “medical care” does not necessarily implicate the exercise
of medical judgment. In this sense, the exception in MCL 691.1407(4) applies to
both claims of ordinary negligence and medical malpractice.


16McLean, 289 Mich App at 599. In McLean, the Court of Appeals held that the
phrase “medical care or treatment” referred to issues affecting a patient’s physical
or mental health. Id. at 599-600. In the instant case, there is no dispute whether
the decedent, who was allegedly diagnosed with Alzheimer’s, was, at a minimum,
receiving “medical care or treatment.”

17 See, e.g., Dyer v Trachtman, 470 Mich 45, 54 n 5; 679 NW2d 311 (2004);
Adkins v Annapolis Hosp, 420 Mich 87, 95 n 10; 360 NW2d 150 (1984); Trowell
v Providence Hosp & Med Ctrs, Inc, 316 Mich App 680; 893 NW2d 112 (2016).
For instance, in Adkins, 420 Mich at 95 n 5, the Supreme Court explained that
“[s]ome hospital errors in patient treatment may, of course, be ordinary
negligence rather than malpractice.”

18Bryant v Oakpointe Villa Nursing Ctr, 471 Mich 411, 421; 684 NW2d 864
(2004) (first emphasis added).

19 Id.


20 Id.   at 422 (quotation marks and citations omitted).



                                           -3-
       21 Id.   (quotation marks and citation omitted; alteration in original).

       22 Id.   at 430-431.

       23Cf. id. at 422 (describing the two hallmarks of a medical malpractice claim: a
       patient relationship and the application of medical knowledge).


         We agree with the trial court’s analysis and adopt it as our own. We only add that
defendants’ reliance on the word “patient” to equate the exception to medical malpractice
stretches the interpretation too far. It certainly implies that the injury must arise in a medical
context. And it certainly limits the class of plaintiffs to whom the exception applies. Indeed, this
reflects changes made to the statute after this Court’s decision in Musulin v Univ of Mich Bd of
Regents, 214 Mich App 277; 543 NW2d 337 (1995).
         In Musulin, this Court held that, under a prior version of MCL 691.1407(4), the exception
to governmental immunity applied where the plaintiff was a visitor to a hospital, but not a
patient. The opinion concludes by stating that the “Legislature has given no indication that
liability under the public hospital exception should be limited to hospital patients or to medical
malpractice claims.” Musulin, 214 Mich App at 287. The subsequent amendment to the statute
makes it explicitly clear that the Legislature intended to limit the scope of the statute to patients.
It, however, fails to make clear any intent to limit it to claims of medical malpractice; instead, it
employs broader language referring to employees and agents who are providing medical care and
treatment. Had the Legislature intended to limit the exception to medical professionals who
commit medical malpractice, it could have employed more specific language that clearly
expresses such intent. In the absence of such limiting language, we must agree with the trial
court that the Legislature intended to grant an exception to immunity for any injury arising out of
medical care and treatment, without regard to whether the theory is based upon medical
malpractice or ordinary negligence.

         Next, defendants argue that the trial court erred in rejecting its claim that it was entitled
to summary disposition under MCR 2.116(C)(8) on the medical malpractice and vicarious
liability claims because plaintiff did not identify in the complaint the exact employees or agents
of defendants who committed the acts of malpractice. Defendants rely on Cox v Bd of Hosp
Managers for the City of Flint, 467 Mich 1; 651 NW2d 356 (2002). We agree with the trial
court that Cox creates no such requirement. In fact, this Court has stated that “a plaintiff need
not necessarily name the agent as a defendant when suing the principal.” Grimmer v Lee, 310
Mich 95, 101; 872 NW2d 725 (2015).

        Finally, defendants make a similar argument in their claim that the trial court erred in
rejecting their motion to dismiss based upon an inadequate affidavit of merit under MCL
600.2912d. Defendants state that the statute requires that the plaintiff identify with specificity
which particular agent committed the act of malpractice. Defendants fail to cite any applicable
authority to support this claim. More to the point, nothing in MCL 600.2912d requires the
identification of the agent or employee who allegedly committed the act of malpractice.
Defendants’ argument is without merit.



                                                   -4-
Affirmed. Plaintiff may tax costs.



                                           /s/ David H. Sawyer
                                           /s/ Mark J. Cavanagh
                                           /s/ Kirsten Frank Kelly




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