                           STATE OF MICHIGAN

                           COURT OF APPEALS



ANNE MCDONALD, Personal Representative of                          UNPUBLISHED
the ESTATE OF GARY MCDONALD,                                       March 29, 2018

              Plaintiff-Appellee,

v                                                                  No.’s  337173 & 338487
                                                                   Ogemaw Circuit Court
WEST BRANCH REGIONAL MEDICAL                                       LC No. 15-659591-NH
CENTER,

              Defendant-Appellant,
and

JOHN TOLFREE HOSPITAL,

              Defendant.



Before: SAWYER, P.J., and BORRELLO and SERVITTO, JJ.

PER CURIAM.

        West Branch Regional Medical Center (hereafter “defendant”)1 appeals by leave granted
the trial court’s orders denying their motions for summary disposition. We reverse in Docket
No. 337173 and affirm in Docket No. 338487.

                                           I. FACTS

       On October 17, 2012, plaintiff, decedent’s wife, took the decedent to defendant’s facility
for a scheduled chest x-ray. According to plaintiff’s complaint, the decedent had “multiple
comorbidities”2 that required him to use a wheelchair. Plaintiff thus wheeled the decedent into


1
  John Tolfree Memorial Hospital was dismissed by stipulated order soon into the underlying
lawsuit and takes no part in these appeals.
2
  Defined in Merriam-Webster’s Medical Dictionary as “existing simultaneously with and
usually independently of another medical condition.” In other words, he had two more chronic
diseases or conditions present at the same time.


                                               -1-
the office and purportedly told hospital staff that the decedent was unable to stand on his own.
Nevertheless, when decedent was taken into another room for the x-ray, one of the staff members
allegedly told him to stand up and started to wheel the wheelchair away. According to the
decedent, he collapsed to the ground and was subsequently found to have suffered a severe
foot/ankle injury. He also started to have difficulty breathing later that day. The decedent was
the only one who told plaintiff of the fall.

        When plaintiff took the decedent to the emergency room the next day, he was diagnosed
with a fractured ankle and a blood clot—specifically, deep vein thrombosis in the peroneal vein.
Plaintiff initiated an action for negligence and medical malpractice against defendants shortly
after the decedent passed away from an unrelated condition.

       Defendant moved for summary disposition contending that plaintiff’s sole named
standard-of-care expert, Carrie Hanscom, did not meet the criteria as an expert witness in a
medical malpractice action as set forth in MCL 600.2169. Having failed to provide the required
standard of care expert, defendant contended that plaintiff failed to meet an essential element of
her malpractice action and that dismissal was thus appropriate. Plaintiff, naturally, disagreed,
and further responded that her action sounded in both medical malpractice and ordinary
negligence such that, even if Hanscom’s qualifications did not meet the statutory requirements,
her negligence claim still survived summary disposition. The trial court denied defendant’s
motion. Defendant sought leave to appeal that ruling and we granted leave. Estate of Gary
McDonald v West Branch Regional Medical Center, unpublished order of the Court of Appeals,
entered July 25, 2017 (Docket No. 337173).

        Thereafter, defendant moved for summary disposition of plaintiff’s ordinary negligence
claim asserting that plaintiff’s claim arises out of a professional relationship and the exercise of
medical judgment, and is thus solely one of medical malpractice; not ordinary negligence. The
trial court denied the motion, finding that questions of fact precluded summary disposition in
defendant’s favor. We granted defendant’s application for leave to appeal that decision, Estate
of Gary McDonald v West Branch Regional Medical Center, unpublished order of the Court of
Appeals, entered August 28, 2017, (Docket No. 338487) and consolidated the appeals.

                                  II.     DOCKET NO. 337173

        On appeal, defendant argues that Hanscom neither devoted the majority of her
professional time to the active clinical practice of radiology nor to the instruction of students in
the year before the alleged malpractice. Thus, she does not meet the standard set forth in MCL
600.2169(1)(b) to testify as an expert witness in this medical malpractice case and the trial court
abused its discretion in finding otherwise. We agree.

        We review a trial court's decision on a motion for summary disposition de novo.
Gonzalez v St John Hosp & Med Ctr, 275 Mich App 290, 294; 739 NW2d 392 (2007).
Statutory interpretation is a question of law also calling for review de novo. Ardt v Titan Ins Co,
233 Mich App 685, 690; 593 NW2d 215 (1999). A motion under MCR 2.116(C)(10) tests the
factual sufficiency of the complaint. “In evaluating a motion for summary disposition brought
under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and
other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the

                                                -2-
party opposing the motion. Where the proffered evidence fails to establish a genuine issue
regarding any material fact, the moving party is entitled to judgment as a matter of law.” Maiden
v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).

         We review a trial court's ruling regarding the qualification of a proposed expert witness
to testify for an abuse of discretion. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842
(2006). An abuse of discretion occurs when the decision results in an outcome falling outside
the principled range of outcomes. Novi v Robert Adell Children's Funded Trust, 473 Mich 242,
254; 701 NW2d 144 (2005).

        To establish a medical malpractice action, a plaintiff must show the following elements:
(1) the applicable standard of care; (2) the defendant's breach of the standard of care; (3) injuries;
and (4) that the breach proximately caused the injuries. Kalaj v Khan, 295 Mich App 420, 429;
820 NW2d 223 (2012). Expert testimony is required to establish the standard of care and a
breach of that standard. Id. With respect to expert testimony, MCL 600.2169 provides, in
relevant 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
       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.

If a person does not meet all of the requirements of § 2169(1), that person cannot testify on the
appropriate standard of care. Woodard, 476 Mich at 567. And, because expert testimony is
necessary regarding the applicable standard of care in a medical malpractice case, without it, a
plaintiff’s claim of medical malpractice fails. See, e.g., McElhaney ex rel McElhaney v Harper-
Hutzel Hosp, 269 Mich App 488, 497; 711 NW2d 795, 801 (2006) .
                                                 -3-
         Here, the decedent was injured immediately prior to or in the process of having a chest x-
ray taken. He was in the x-ray room and under the care of hospital personnel who were taking
his x-ray when the injury occurred. Thus, plaintiff had to produce an expert radiology technician
to testify as to the appropriate standard of care that was due to the decedent. Defendant does not
dispute that plaintiff’s proposed expert specialized in the same specialty as the party against
whom or on whose behalf testimony would be offered concerning the occurrence that is the basis
for the action. There is no allegation, then, that MCL 600.2169(1)(a) has not been met. In order
to testify, however, plaintiff’s expert must also meet the qualifications set forth in MCL
600.2169(1)(b).

         Plaintiff attached the affidavit of meritorious claim of Carrie J. Hanscom, MBA, R.T. to
her complaint. In the affidavit, Hanscom swore that during the time relevant to plaintiff’s claim,
she was certified as a radiology technologist and devoted a majority of her professional time for
the preceding year to such practice. At her deposition, Hanscom testified that she is the director
of operations for a freestanding imaging center based out of the University of Maryland Medical
Center. She testified that in that position, she oversees the scheduling of all radiology on
campus, the technologists, equipment purchases, procurements, and schedules. Hanscom
testified that she spends approximately 2% of her time assisting in performing x-rays and the
other 98% of her time in administrative work, and those percentages would be true since 2009.
Hanscom last helped take an x-ray in early 2016 and had taken a “dozen or more” chest x-rays
since 2012. According to Hanscom, she was program director for a radiology school from 2000
to 2005, but had not taught since 2005 or 2006. Because Hanscom unequivocally testified that
she had not taught since 2005 or 2006, in order to testify as to standard of care, she must have:

       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 . . .
       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.[MCL
       600.2169(1)(b)(i)]

        Defendant contends that engagement in administrative duties does not qualify as “active
clinical practice” for purposes of MCL 600.2169(1)(b)(i), while plaintiff argues that the phrase
does not have the limited meaning of being directly involved in patient care, as defendant would
suggest. The phrase “active clinical practice” is not defined in MCL 600.2169 or its
accompanying statutes. The only published case in Michigan, to date, that has addressed the
meaning of this phrase is Gay v Select Specialty Hosp, 295 Mich App 284; 813 NW2d 354
(2012). In that nursing malpractice case, the issue for determination was whether the plaintiff’s
proposed nursing expert met the qualifications of MCL 600.2169(1) to testify as an expert. The
proposed expert testified at deposition that she spent the majority of her time serving as an
administrator. Id. at 293. The trial court found that the proposed expert was not actively
engaged in a clinical practice during the relevant time period, nor was an instructor of students in
an accredited professional school during that period so that she did not meet the statutory
qualifications to testify concerning standard of care. Id. at 293-294.

       This Court carefully reviewed the deposition testimony of the proposed expert and
reversed. We noted that the proposed expert served as the director of education at a hospital and

                                                -4-
that she testified that she oversaw education for all support staff, which included the nursing
staff. Id. at 294. The proposed expert denied that her job was a desk job, though she admitted
there was a lot of desk time, and testified that she did all of the orientations, did all of the CPR
classes and continuing education, oriented new nurses to their units, and sat on a lot of
committees. She testified that when orienting nurses, which was about 25% of her workload, she
was actively involved in patient care. Id. at 295. This Court found that the trial court
erroneously found that the proposed expert spent no time in the active clinical practice of nursing
and that the trial court further erroneously found that the proposed expert was not directly
involved in the care of patients when the statute imposed no such requirement. Id. at 295.
Instead, the Gay Court found that the statute only required that a proposed expert spend the
majority of his time in an “active clinical practice,” which the Legislature did not define. The
Gay Court stated:

       The ordinary meaning of “clinical practice” is the practice of one's profession in a
       clinical setting. See Random House Webster's College Dictionary (2d ed, 1997)
       (defining “clinical” to mean “pertaining to a clinic” or “concerned with or based
       on actual observation and treatment of disease in patients rather than
       experimentation or theory” and defining “practice” to mean “to pursue a
       profession, [especially] law or medicine”). Thus, in the case of a medical
       professional, in order to be engaged in an active clinical practice, the
       professional's practice must involve practice in a clinical setting, which usually
       means a setting where patients are treated. But this is not the equivalent of stating
       that the professional must directly interact with patients, which is what the trial
       court apparently understood when it disregarded Boggs's work overseeing the
       orientation of new nurses for the hospital. A medical professional can be
       involved in the treatment of patients in a variety of ways in a clinical setting
       without directly interacting with the patients. And the fact that many—if not
       most—nurses will physically interact with patients in the practice of their
       professions does not mean that a nurse who is indirectly involved in the care of
       patients is not engaged in the “active clinical practice” of nursing. Giving the
       phrase “active clinical practice” its ordinary meaning, the key question is whether
       Boggs was actively engaged in the profession of nursing in a clinical setting. [Id.
       at 295-296]

This Court further noted that “[i]n imposing professional-time requirements on expert witnesses,
the Legislature intended to address a perceived problem with full-time professional witnesses
who would ostensibly testify to whatever someone paid them to testify about.” Id. at 296
(citation omitted).

       But the word “active” cannot be construed in this context to require that the
       professional physically interact with patients. Rather, the word “active” must be
       understood to mean that, as part of his or her normal professional practice at the
       relevant time, the professional was involved—directly or indirectly—in the care
       of patients in a clinical setting. [Id. at 297]

      Employing the ordinary definition it assigned to the phrase “active clinical practice,” the
Gay court found that the prosed expert’s testimony that she spent 25% of her time orienting

                                                -5-
nurses, and 50% of her time teaching for an accredited residency program was sufficient to find
that she spent more than 50% of her time in the active clinical practice of nursing or instructing
nursing students and thus met the statutory requirement to provide expert testimony. Id. at 300-
301.

        Here, Hanscom testified that 98% of her time is spent in administrative work while 2% of
her time is spent assisting in or performing x-rays. While this is not necessarily dispositive as to
whether she spent the majority of her time in “the active clinical practice” of radiology
technology, the rest of her testimony is dispositive on this issue. Hanscom testified concerning
her job duties as follows: overseeing the scheduling of all radiology on campus, the
technologists, equipment purchases, procurements, and schedules. Taking the Gay Court’s
definitions of “clinical” to mean “pertaining to a clinic” or “concerned with or based on actual
observation and treatment of disease in patients rather than experimentation or theory” and
“practice” to mean “to pursue a profession, [especially] law or medicine” (Id. at 295), we are
satisfied that overseeing scheduling does not fall within the parameters of “active clinical
practice.” Overseeing the scheduling of radiology appointments is not concerned with the actual
observation and treatment of disease in patients. Hanscom did not testify that she determines if
patients require an x-ray and, in fact, testified that she only assists in performing x-rays 2% of
her time. Overseeing the scheduling of x-rays is a purely administrative task to ensure that the
business runs smoothly. So too, is equipment purchases, procurements, and schedules.
Hanscom testified that she oversees the technologists, which could be concerned with or based
on the actual observation and treatment of disease in patients, but Hanscom did not elaborate on
what, specifically, she did to oversee the technologists or what percentage of her time was
devoted to that task. Without any testimony or evidence as to whether she spent 48% or more of
her time on overseeing technologists and, further, testimony or evidence indicating that this task
was concerned with or based on the actual observation and treatment of disease in patients,
plaintiff has failed to establish that Hanscom met the statutory requirements of MCL
600.2169(1). It is the proponent of expert testimony in a medical malpractice case who must
satisfy the court that the expert is qualified under MCL 600.2169. Elher v Misra, 499 Mich 11,
22; 878 NW2d 790 (2016). Because plaintiff failed to provide an expert witness to testify as to
standard of care, summary disposition in defendant’s favor was appropriate.

                                    III. DOCKET NO. 338487

         Defendant argues that plaintiff’s claim pertains to an action that occurred within the
course of the decedent’s professional relationship with defendant and it raised questions of
medical judgment beyond common knowledge. According to defendant, her claim thus sounds
strictly in medical malpractice, and there is no material question of fact allowing her ordinary
negligence claim to stand.

        “In       determining         whether        the        nature      of        a       claim
is ordinary negligence or medical malpractice, as well as whether such claim is barred because of
the statute of limitations, a court does so under MCR 2.116(C)(7). We review such claims de
novo.” Bryant v Oakpointe Villa Nursing Ctr, 471 Mich 411, 419; 684 NW2d 864, 869-70
(2004). In reviewing a matter under MCR 2.116(C)(7), we consider all documentary evidence
submitted by the parties, accepting as true the contents of the complaint unless affidavits or other
appropriate documents specifically contradict it. Id.

                                                -6-
        A medical malpractice case is distinguished from an ordinary negligence case 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.” Bryant, 471 Mich at 422 (internal citations and quotation marks
omitted). “Claims of ordinary negligence, by contrast, raise issues that are within the common
knowledge and experience of the fact-finder.” Id. Thus, if a claim relates to an action that
occurred within the course of a professional relationship and raises questions of medical
judgment beyond common knowledge it is a medical malpractice action. Id.

       A professional relationship exists when:

       a licensed health care professional, licensed health care facility [or agency], or the
       agents or employees of a licensed health care facility [or agency], [are] subject to
       a contractual duty that require[s] that professional, that facility [or agency], or the
       agents or employees of that facility [or agency], to render professional health care
       services to the plaintiff. [Lockwood v Mobile Med Response, Inc, 293 Mich App
       17, 23; 809 NW2d 403 (2011), quoting Bryant, 471 Mich at 422]

The Bryant Court cautioned that “[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.” Id. at 421. Neither party in this case disputes
the existence of a medical relationship.

       The determination of whether medical judgment is involved depends on whether the facts
allegedly raise issues that are within the common knowledge and experience of the jury. Dorris
v Detroit Osteopathic Hosp Corp, 460 Mich 26, 45-46; 594 NW2d 455 (1999).

       If the reasonableness of the health care professionals' action can be evaluated by
       lay jurors, on the basis of their common knowledge and experience, it is ordinary
       negligence. If, on the other hand, the reasonableness of the action can be
       evaluated by a jury only after having been presented the standards of care
       pertaining to the medical issue before the jury explained by experts, a medical
       malpractice claim is involved. [Bryant, 471 Mich at 423]

In resolving whether claims alleged medical malpractice or ordinary negligence, we disregard
the label applied to the claims. Trowell v Providence Hosp & Med Centers, Inc, 316 Mich App
680, 695–96; 893 NW2d 112 (2016). A party cannot avoid the application of procedural
requirements associated with a medical malpractice action by labeling or describing the cause of
action in terms of ordinary negligence. Id.

        In her complaint, plaintiff alleged that she told staff at defendant’s office that the
decedent was unable to stand by himself. In her ordinary negligence clam, plaintiff asserted that
the healthcare providers and staff involved in the care of the decedent were obliged to identify
him as a fall risk, take all reasonable fall precautions, and provide him with appropriate
assistance in ambulating. Plaintiff asserted that these defendants were careless, negligent and in
breach of their obligations to identify a patient such as the decedent as a fall risk, take all

                                                -7-
reasonable fall precautions, and provide the decedent with appropriate assistance with
ambulating and, that as a result, they failed to timely and properly prevent the decedent from
suffering a fall and incurring injuries. Several cases provide guidance on whether these
allegations could sound in ordinary negligence.

        In Bryant, a patient who was not in control of her motor skills was prone to sliding
around became tangled in her bedding, despite the use of certain restraining devices. Id. at 415.
Nurses on duty untangled the patient and advised that better methods of restraint needed to be
used because the patient was at risk of asphyxiation in the bed sheets or bed. Id. at 416. The
next day, the patient slid between the rails and bed and asphyxiated to her ultimate death. Id. at
417. This Court found that at least one of the plaintiff’s allegations — that the defendant did not
take steps to protect the decedent from asphyxiation when she had previously been discovered
tangled in the bed sheets — was ordinary negligence. This Court opined that no expert
testimony was necessary to determine whether defendants should have taken “some sort of
corrective action to prevent future harm after learning of the hazard.” Id. at 430–431 (emphasis
in original). The fact-finder did not need expert testimony, but could “rely on common
knowledge and experience in determining whether defendant ought to have made an attempt to
reduce a known risk of imminent harm to one of its charges.” Id. at 431.

         The physical movement or transfer of a patient by medical staff “may or may not
implicate professional judgment.” Id. at 421 n 9. “The court must examine the particular factual
setting of the plaintiff's claim in order to determine whether the circumstances—for example, the
medical condition of the plaintiff or the sophistication required to safely effect the move—
implicate medical judgment . . . .” Id. For example, in Trowell v Providence Hosp & Med
Centers, Inc, 316 Mich App 680, 697; 893 NW2d 112 (2016), this Court noted that “medical
judgment, knowledge, and expertise could certainly play an integral role in determining whether
one person or two persons should assist a patient in walking or moving.” It also noted,
“[h]owever, we can also envision a situation in which the determination regarding whether it was
negligent to employ just one worker to assist a patient can be made by a jury on the basis of the
jurors' common knowledge and experience.” Id. at 698. In addition:

               We recognize that in certain cases it may be necessary to consider matters
       that implicate medical judgment in conjunction with matters that do not implicate
       medical judgment relative to evaluating whether negligence occurred in moving
       or handling a patient, which would effectively make the case a medical
       malpractice action. See Sturgis Bank & Trust, 268 Mich App at 497–498; 708
       NW2d 453 (2005). However, in other cases, factors not requiring or implicating
       medical judgment may be fully sufficient in and of themselves to properly assess
       the reasonableness of conduct; such factors fall within the realm of common
       knowledge and experience. Absent documentary evidence and illumination from
       the complaint, we simply cannot ascertain whether the instant case is such a case
       or whether medical expertise and judgment must be contemplated relative to the
       question of the number of aides or nurses that should have been employed to
       safely assist plaintiff. The allegations in the complaint alone were inadequate to
       serve as a basis to summarily dismiss plaintiff's action, and plaintiff was not
       obligated to submit documentary evidence when the hospital chose not to do so in
       support of its motion for summary disposition. Id. at 698-699.

                                                -8-
        In Gold v Sinai Hosp of Detroit, Inc, 5 Mich App 368, 369; 146 NW2d 723 (1966), a
patient sued a hospital for ordinary negligence when she fell from an examination table,
incurring injuries. The patient warned the nurse who was assisting her onto an examination table
that she was nauseated and dizzy and that she ‘would not be able to make it.’ The nurse assured
the patient that she would brace her from behind but did not and when the patient moved, she
fell. This Court found that the case was a question of ordinary negligence rather than
malpractice. Id. at 370.

        Accepting as true the allegations in plaintiff's complaint, the circumstances alleged to
have attended the decedent's fall bear similarities to those described in Bryant. Plaintiff alleged,
among other things, that defendant was obliged to provide the decedent with appropriate
assistance in ambulating and that they were negligent in failing to do so. As in Bryant, the
decedent’s providers at the hospital were allegedly aware of his limitations that left him
vulnerable to a risk of falling. A lay juror could observe that one who is unable to stand on his
own may fall if told to stand on his own. Despite this knowledge, hospital personnel allegedly
had the decedent stand unassisted. This decision was not a professional one; rather, it involved
an ordinary action in surroundings that a layperson could readily understand. If proven, these
facts require no expert explanation because lay jurors can evaluate the reasonableness of the
allegedly negligent acts by employing their common knowledge and experience. If a patient
arrives in a wheelchair and hospital staff is told that he is unable to stand unassisted, a lay juror
has the experience and knowledge to determine whether the act of having the patient stand
unassisted was reasonable. Thus, plaintiff set forth a claim for ordinary negligence and the trial
court properly denied summary disposition in defendant’s favor on this claim.

        Reversed in Docket No. 337173 and affirmed in Docket No. 338487. We remand to the
trial court for further proceedings. We do not retain jurisdiction.



                                                              /s/ David H. Sawyer
                                                              /s/ Stephen L. Borrello
                                                              /s/ Deborah A. Servitto




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