            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


DAYTON ACKLEY, by next friend RICK
ACKLEY,                                                              UNPUBLISHED
                                                                     May 14, 2020
               Plaintiff-Appellant,

v                                                                    No. 346350
                                                                     Oakland Circuit Court
KINGSWOOD HOSPITAL, INC.,                                            LC No. 2017-162637-NO

               Defendant-Appellee,

and

HENRY FORD HEALTH SYSTEM and
BRAYLON BANKS,

               Defendants.



Before: MURRAY, C.J., and RONAYNE KRAUSE and TUKEL, JJ.

PER CURIAM.

        Plaintiff, Dayton Ackley, by his next friend Rick Ackley, appeals by right the trial court’s
order granting summary disposition to defendant, Kingswood Hospital, Inc. (Kingswood). We
affirm in part, reverse in part, and remand for further proceedings. This appeal is being decided
without oral argument pursuant to MCR 7.214(E)(1).




                                                -1-
                                         I. BACKGROUND1

        When plaintiff was eleven years old, he was admitted to Kingswood for in-patient
psychiatric care. Two days after his admission, another minor patient with whom plaintiff was
then sharing a room, defendant Braylon Banks, allegedly threatened to sexually assault plaintiff.
There is no dispute that plaintiff notified Kingswood staff of those threats. Kingswood contends
that it promptly moved Banks to another room and monitored plaintiff throughout the night.
Plaintiff contends that Banks in fact carried out his threat and sexually assaulted plaintiff that night,
and then Kingswood “tampered with the evidence without contacting the proper authorities and
allowing them to investigate the allegations.”

         Plaintiff commenced the instant action, alleging a claim for assault and battery against
        2
Banks and ordinary negligence against Kingswood. Plaintiff alleged that Kingswood breached
its duties by (1) failing to take steps to protect plaintiff after receiving notice of the sexual assault
threats; (2) failing to provide mental health services in a safe environment pursuant to MCL
330.1708, a provision of the Mental Health Code, MCL 330.1101 et seq.; (3) failing to protect
plaintiff from nonconsensual sexual advances made by other patients, and (4) failing to investigate
and take appropriate measures to prevent the other patient from engaging in sexual contact with
plaintiff. Kingswood moved for summary disposition, arguing that plaintiff’s claim sounded in
medical malpractice as opposed to ordinary negligence, that plaintiff failed to comply with the
procedural requirements of a medical malpractice claim, and that his complaint therefore must be
dismissed.

        The trial court concluded that plaintiff’s claim sounded in medical malpractice because it
involved questions of medical judgment that would require expert testimony, and the ordinary
layman would not know the type of supervision or monitoring that was required for minor patients
in a mental health facility. The trial court also concluded that the Mental Health Code did not
create a civil cause of action for violation of the statute. It therefore granted Kingswood summary
disposition under MCR 2.116(C)(8). This appeal followed.

                                   II. STANDARD OF REVIEW

       A grant or denial of summary disposition is reviewed de novo. Maiden v Rozwood, 461
Mich 109, 118; 597 NW2d 817 (1999). Although defendant cited to both MCR 2.116(C)(8) and
(10) in its motion, it did not attach any documentary evidence and only presented substantive
argument relevant to MCR 2.116(C)(10). Thus, it was only properly brought under MCR
2.116(C)(8), so plaintiff had no obligation under the court rules to respond to the motion with any
evidence. Barnard Mfg Perf Co Inc v Gates Perf Engineering Inc, 285 Mich App 362, 369-370;
775 NW2d 618 (2009). Defendant’s attachment of a document to its reply brief is not sufficient




1
  Because, as we will discuss, defendant’s motion for summary disposition was brought pursuant
to MCR 2.116(C)(8), we take the facts from, and base our decision on, the allegations in plaintiff’s
complaint.
2
    Banks has been dismissed as a defendant and is not participating in this appeal.


                                                  -2-
to properly present the motion—and to obligate plaintiff to respond with evidence—in the first
instance. As such, we review the motion solely under MCR 2.116(C)(8).

        A motion brought under MCR 2.116(C)(8) should be granted only where the complaint is
so legally deficient that recovery would be impossible even if all well-pleaded facts were true and
construed in the light most favorable to the non-moving party. Maiden, 461 Mich at 119. Only
the pleadings may be considered when deciding a motion under MCR 2.116(C)(8). Id. at 119-120.

        “Whether a claim sounds in ordinary negligence or medical malpractice is a question of
law that is reviewed de novo.” Trowell v Providence Hosp and Med Ctrs, Inc, 502 Mich 509, 517;
918 NW2d 645 (2018). The interpretation and application of statutes, rules, and legal doctrines
are also reviewed de novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). This
Court looks to the substance of pleadings rather than the formal names or labels given by the
parties. Hartford v Holmes, 3 Mich 460, 463 (1855); Norris v Lincoln Park Police Officers, 292
Mich App 574, 582; 808 NW2d 578 (2011). Thus, the nature of a claim depends on a reading of
the complaint as a whole. Jahnke v Allen, 308 Mich App 472, 475; 865 NW2d 49 (2014).

               III. ORDINARY NEGLIGENCE OR MEDICAL MALPRACTICE

        In determining whether a claim sounds in medical malpractice or ordinary negligence, two
questions must be answered: “(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.” Bryant v Oakpointe Villa
Nursing Center, Inc, 471 Mich 411, 422; 684 NW2d 864 (2004). In this case, there is no dispute
that the claim involved an action that occurred within the course of a professional relationship.
Thus, the only question is “whether the claim raises questions of medical judgment beyond the
realm of common knowledge and experience.” Id.

         We conclude that at least part of plaintiff’s claim, as pled, clearly sounds in ordinary
negligence. In relevant part, a fair reading of plaintiff’s complaint is that Kingswood staff failed
to take any responsive action after they were notified of Banks’s threat; and after Banks carried
out the threat, Kingswood staff attempted to cover the incident up. No medical judgment is called
for to determine whether Kingswood should have done something, and no medical judgment is
called for to determine whether Kingswood should not have then tampered with evidence. Plaintiff
also alleged that Kingswood “failed to protect” him from “sexual advances made by other
patients.” Although somewhat vague, when read in context, this allegation again appears to assert
a total failure to act. Finally, plaintiff alleged that Kingswood “fail[ed] to investigate and take the
appropriate measures” to prevent the sexual assault. A failure to investigate, once more, is a pure
failure to do anything. Thus far, a trier of fact could adequately consider any of these assertions
with the benefit of only “common knowledge and experience.” See Bryant, 471 Mich at 430-432.

       The nature of Kingswood’s alleged failure to “take the appropriate measures” (emphasis
added) is a much closer question. Standing alone, it implies that Kingswood did in fact take
responsive measures, but that those measures were inadequate. The sufficiency or propriety of
measures undertaken by a hospital in a medical context, such as staffing decisions, supervision or
monitoring decisions, and training, generally call for medical judgment. Trowell, 502 Mich at
522-524. However, a failure to take any measures would generally sound in ordinary negligence,


                                                 -3-
whereas a failure to take appropriate measures would generally sound in medical malpractice.
Nonetheless, we determine the nature of a claim by reading it as a whole, not by reading it
piecemeal. Jahnke, 308 Mich App at 475. The appropriateness of Kingswood’s response does
not appear to be the real point of plaintiff’s claim, and in any event, doing nothing certainly would
not be appropriate. Thus, when the complaint is read as a whole, the gravamen of plaintiff’s claim
is a claim for ordinary negligence.

       Plaintiff may not challenge the sufficiency or propriety of any responsive measures
undertaken by Kingswood, other than such obviously non-medical malfeasance as attempting to
destroy evidence or cover up the incident. However, as pled, the gravamen of plaintiff’s claim is
that Kingswood took no responsive measures at all, which clearly sounds in ordinary negligence.
Thus, the trial court erred in granting summary disposition on the grounds that plaintiff’s claim
sounded in medical malpractice.

                                  IV. MENTAL HEALTH CODE

         Plaintiff also argues that the trial court erred in concluding that the Mental Health Code did
not create a private cause of action. In his complaint, plaintiff alleged that Kingswood violated its
statutory duty to plaintiff under MCL 330.1708(2), a provision of the Mental Health Code that
states: “Mental health services shall be provided in a safe, sanitary, and humane treatment
environment.” We find no statutory support for the proposition that this provision creates a private
right of action, although we think it does outline a standard of care applicable to an ordinary
negligence claim. However, plaintiff would require expert witnesses to explain that standard of
care and how Kingswood allegedly breached it, because “allegations concerning staffing decisions
and patient monitoring involve questions of professional medical management and not issues of
ordinary negligence . . . The ordinary layman does not know the type of supervision or monitoring
that is required for psychiatric patients in a psychiatric ward.” Dorris v Detroit Osteopathic Hosp,
Corp, 460 Mich 26, 47; 594 NW2d 455 (1999). Thus, although plaintiff may rely on the Mental
Health Code to the extent it might support his claim that Kingswood should have done something
rather than nothing, the trial court correctly determined that the Mental Health Code did not
independently confer upon plaintiff a cause of action.

                       V. DUTY TO PROTECT FROM CRIMINAL ACTS

        Plaintiff also argues that Kingswood had a duty to protect him from criminal acts due to
their special relationship. The trial court did not address this issue, but it was raised in plaintiff’s
complaint and thus directed to the trial court’s attention, so it is preserved for appellate review.
Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994). Plaintiff does
not specifically mention this argument in his statement of questions presented, so we might deem
it abandoned. Caldwell v Chapman, 240 Mich App 124, 132; 610 NW2d 264 (2000).
Nevertheless, plaintiff does list it in his table of contents, and, in any event, we choose to address
this issue. See Mack v Detroit, 467 Mich 186, 207-208; 649 NW2d 47 (2002); Paschke v Retool
Industries (On Reh), 198 Mich App 702, 705; 499 NW2d 453 (1993), rev’d on other grounds 445
Mich 502; 519 NW2d 441 (1994).

       Typically, individuals do not have a duty to protect another who is endangered by a third
person’s conduct. Swan v Wedgwood Christian Youth & Family Servs, 230 Mich App 190, 200;


                                                  -4-
583 NW2d 719 (1998). A duty of reasonable care may arise where a person has “a special
relationship with either the victim or the person causing the injury.” Id. Such relationships
recognized under Michigan law include those of psychiatrist-patient and doctor-patient. Id.
According to the complaint, plaintiff was a minor with very little personal freedom, effectively
trapped in a medical facility controlled by Kingswood, and that facility by its very nature holds
itself out as a safe place for parents to relinquish their own control over their children to
Kingswood. Kingswood’s control over plaintiff, under the circumstances, was more than a
sufficient allegation to establish a duty. See Williams v Cunningham Drug Stores, Inc, 429 Mich
495, 499; 418 NW2d 381 (1988) (“The rationale behind imposing a duty to protect in these special
relationships is based on control. In each situation one person entrusts himself to the control and
protection of another, with a consequent loss of control to protect himself.”) Thus, Kingswood
clearly did have a special duty to protect plaintiff from the criminal acts of third parties.

         However, the specific nature of that duty is a closer question. The alleged duty to protect
in general is distinct from the alleged failure to respond to a specifically identified threat. We
conclude that protecting psychiatric patients from each other in a controlled psychiatric medical
facility necessarily entails questions of training, supervision, staffing, and related “questions of
medical judgment beyond the realm of common knowledge and experience.” Bryant, 471 Mich
at 422. Thus, we agree with plaintiff that Kingswood owed him a special duty, but under the
circumstances, the nature of that duty sounds in medical malpractice rather than ordinary
negligence. Kingswood was entitled to summary disposition as to this claim.

                                   VI. QUESTIONS OF FACT

         Finally, the medical records submitted to the trial court tended to show that Kingswood
staff notified the physician in charge after they received notice of the threats, moved Banks to a
separate room, and closely monitored plaintiff throughout the night. Thus, Kingswood factually
disputes whether it took any responsive action, and it submitted evidence in support of its argument
that it did respond to plaintiff’s notification of the threat. The question of whether Kingswood’s
actions were adequate, as opposed to whether they occurred at all, necessarily sounds in medical
malpractice. Bryant, 471 Mich at 422; Dorris, 460 Mich at 47. A party may not respond to a
motion for summary disposition under MCR 2.116(C)(10) by merely relying on the party’s
allegations, but rather must affirmatively show with evidence that there is a genuine question of
fact. Maiden, 461 Mich at 120-121. Because defendant did not attach the evidence to its motion,
plaintiff did not, and was not required to, provide any affidavits, records, deposition testimony, or
other evidence contradicting Kingswood’s medical records. Thus, those records played no proper
role in deciding this motion properly brought under MCR 2.116(C)(8).

       Furthermore, the motion was brought and decided prior to the close of discovery. 3 A
motion under MCR 2.116(C)(10) is generally premature before the close of discovery, and such a
motion should not be granted unless “there is no reasonable chance that further discovery will


3
 The trial court entered a Calendar Conference Order on July 13, 2018, directing that discovery
should be completed by January 12, 2019. We cannot find any subsequent order in the record
shortening the discovery period. The trial court’s order granting summary disposition was dated
August 23, 2018.


                                                -5-
result in factual support for the nonmoving party.” Colista v Thomas, 241 Mich App 529, 537-
538; 616 NW2d 249 (2000). Kingswood presented no such argument. Notably, plaintiff’s
complaint explicitly alleged that Kingswood “tampered with the evidence,” thus necessarily
placing the accuracy of the medical records squarely at issue. We are unable to conclude that there
is no reasonable possibility that plaintiff could, through further discovery, provide factual support
for the portion of his claims sounding in ordinary negligence. We therefore conclude that summary
disposition pursuant to MCR 2.116(C)(10) would have been premature at this juncture.

                                       VII. CONCLUSION

        Plaintiff has validly alleged claims against Kingswood sounding in ordinary negligence, to
the extent those claims assert that Kingswood totally failed to respond to plaintiff’s notification of
Banks’s threat or engaged in efforts to cover up the alleged sexual assault. To the extent plaintiff’s
claims inquire into the adequacy or propriety of any response Kingswood actually did undertake,
those claims would sound in medical malpractice, and Kingswood would be entitled to partial
summary disposition as to those claims. Defendant was also entitled to summary disposition of
the claim brought under the Mental Health Code.

        We therefore affirm in part and reverse in part the trial court’s grant of summary disposition
in favor of Kingswood, and we remand for further proceedings consistent with this opinion. We
do not retain jurisdiction. No costs, neither party having prevailed in full. MCR 7.219(A).

                                                              /s/ Christopher M. Murray
                                                              /s/ Amy Ronayne Krause
                                                              /s/ Jonathan Tukel




                                                 -6-
