                            STATE OF MICHIGAN

                            COURT OF APPEALS



TOD MCLAIN, Personal Representative of the                         FOR PUBLICATION
ESTATE OF TRACY MCLAIN,                                            March 3, 2015
                                                                   9:05 a.m.
               Plaintiff-Appellant,
V                                                                  No. 318927
                                                                   Ingham Circuit Court
LANSING FIRE DEPARTMENT, CITY OF                                   LC No. 11-000859-NH
LANSING, and JEFFREY WILLIAMS,

               Respondents-Appellees,

and

MICHAEL DEMPS,

               Defendant.


Before: SAAD, P.J., and OWENS and K. F. KELLY, JJ.

SAAD, P.J.

       Plaintiff appeals the trial court’s grant of summary disposition to defendant.1 For the
reasons stated below, we affirm.

                            I. FACTS AND PROCEDURAL HISTORY

        This case involves the death of plaintiff’s decedent, Tracy McLain. According to
plaintiff’s original complaint, McLain suffered a respiratory attack in February 2009. When
emergency personnel arrived, they administered medication and CPR, and inserted a breathing
tube into McLain. Though McLain was promptly delivered to the hospital, she was declared
brain-dead several days after her admission, and died soon after. Plaintiff’s complaint attributed



1
  Defendant Michael Demps also provided emergency medical services in connection with the
events underlying this case, but he and plaintiff have reached a settlement.


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her death to defendant Jeffrey Williams’2 alleged placement of the breathing tube in her
esophagus instead of her trachea.

        In deposition, Williams said that he followed proper procedure during McLain’s
treatment, and that he did not place the breathing tube in McLain’s esophagus—nor did he see
anyone else do so. He also stated that: (1) the intubating procedure appeared to have been
successful; (2) he and other emergency personnel continuously monitored McLain’s status on the
way to the hospital; and (3) he did not know how the tube could have been in her esophagus,
apart from the possibility that it became dislodged. In addition to stressing Williams’ statement
that he did not place the breathing tube in McLain’s esophagus, defendants argued that the
Governmental Tort Liability Act (“GTLA”), MCL 691.1401, et seq., and the Emergency
Medical Services Act (“EMSA”), MCL 333.20901 et seq., provided them with immunity from
plaintiff’s suit.

       After an initial hearing, the trial court held that the GTLA did not give defendants
immunity from plaintiff’s suit.3 It further permitted plaintiff to file an amended complaint that
alleged gross negligence or willful misconduct, to abrogate the immunity defendants claimed
under the EMSA. Plaintiff filed such an amended complaint, and defendants responded with a
motion for summary disposition pursuant to MCR 2.116(C)(7).

        After another hearing, the trial court granted defendants’ motion for summary
disposition. It held that plaintiff had failed to create a question of fact that defendants treated
McLain with “gross negligence” or “willful misconduct,” and that defendants were thus entitled
to immunity under the EMSA. The trial court also noted that the only evidence presented by
plaintiff that suggested any error by defendants in their treatment of McLain—(1) “medical
progress notes”4 from the hospital that stated the breathing tube was located in McLain’s


2
    Williams works as a fireman and paramedic for defendant City of Lansing.
3
    The trial court referenced MCL 691.1407(4), which provides:
         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.
4
  An intern at the hospital dictated the medical progress notes. He clarified in deposition that he
did not have firsthand knowledge of many of the events described in the notes: for instance, he
did not discover the breathing tube’s placement in McLain’s esophagus, nor was he aware of
when the breathing tube might have lodged itself in McLain’s esophagus. He emphasized that
his report reflected what he had been told about McLain’s case by other individuals (who he
could no longer identify). The trial court therefore noted that the intern did not have “any direct
information as to where the tube was located” and that the note was a “subjective” document “of

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esophagus (though the notes did not indicate when the breathing tube might have lodged itself in
McLain’s esophagus); and (2) plaintiff’s assertion that Williams’ testimony was not credible—
was either of dubious admissibility and accuracy, or unsupported.5

        On appeal, plaintiff claims that the trial court should have granted him summary
disposition under MCR 2.116(C)(9), or entered a default order against defendants under MCR
2.115(B), because defendants supposedly did not file an affidavit of meritorious defense.
Plaintiff also asserts that the trial court erred when it held that, as a matter of law, plaintiff had
failed to show that defendants acted with gross negligence under the EMSA. Defendants ask us
to uphold the ruling of the trial court.

                                      II. STANDARD OF REVIEW

        A trial court’s decision on a motion for summary disposition is reviewed de novo. Ardt v
Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). When it grants a motion under
MCR 2.116(C)(7), a trial court should examine all documentary evidence submitted by the
parties, accept all well-pleaded allegations as true, and construe all evidence and pleadings in the


the person writing the note’s best sense.”            For these reasons, the trial court doubted the
document’s admissibility.
5
    Specifically, the trial court stated:
          [I]t really does come down to . . . this medical record [dictated by the intern],
          which sort of sets in motion the suggestion that the tube was in the esophagus and
          not the trachea, and whether or not that . . . creates some fact question that sort of
          you can backtrack into what [defendant] Williams did or did not do in terms of
          was he negligent in terms of not observing something, or was he grossly negligent
          ....

          And when I looked at the testimony of [the intern], . . . it’s not just that he doesn’t
          remember what he did at the time. It seems clear . . . that he was not the person
          who had any direct information as to where the tube was located. . . . [W]hen you
          review that testimony, it basically says that he doesn’t know where the
          information came from other than . . . it’s sort of a subjective note of the person
          writing the note’s best sense, or, as he says “A note written to the best of their
          knowledge.”

          . . . [I]n my view, that’s not really evidence that’s admissible in response to the . .
          . obligation on the part of the non-moving party to refute this motion for summary
          disposition.

          Absent that, all we are left with, really, is this argument, . . . that it’s a credibility
          issue, and that we should submit to the jury whether or not Williams is credible in
          what he says he did even though there is no other testimony that really challenges
          that other than . . . this medical note.


                                                     -3-
light most favorable to the nonmoving party. Tarlea v Crabtree, 263 Mich App 80, 87; 687
NW2d 333 (2004).

        A trial court’s decision on whether to enter a default in response to a defendant’s failure
to submit an affidavit of meritorious defense is reviewed for an abuse of discretion. See
Kowalski v Fiutowski, 247 Mich App 156, 164-165; 635 NW2d 502 (2001). A trial court does
not abuse its discretion when it chooses an outcome within the range of reasonable and
principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).

                                         III. ANALYSIS

                                 A. MERITORIOUS DEFENSE

       MCL 600.2912e(1) specifies that:

       In an action alleging medical malpractice, within 21 days after the plaintiff has
       filed an affidavit in compliance with [MCL 600.2912d], the defendant shall file an
       answer to the complaint. Subject to subsection (2), the defendant or, if the
       defendant is represented by an attorney, the defendant's attorney shall file, not
       later than 91 days after the plaintiff or the plaintiff's attorney serves the affidavit
       required under [MCL 600.2912d], an affidavit of meritorious defense signed by a
       health professional who the defendant's attorney reasonably believes meets the
       requirements for an expert witness under [MCL 600.2169].6

     However, a medical malpractice defendant who asserts governmental immunity under the
GTLA is not required to file an affidavit of meritorious defense pursuant to MCL 600.2912e(1):

       Because governmental employees are immune from breaches of the standard of
       ordinary care, the affidavit of merit requirements of MCL 600.2912e are not
       relevant to a defendant otherwise entitled to governmental immunity, and we
       therefore conclude that such a defendant may not lose the benefit of that
       immunity merely by failing to timely file the affidavit of meritorious defense.
       [Costa v Community Emergency Med Servs, Inc, 475 Mich 403, 412-13, 716
       NW2d 236 (2006).]

        Although the EMSA is a separate statute from the GTLA, the two laws “share the
common purpose of immunizing certain agents from ordinary negligence and permitting liability
for gross negligence.” Jennings v Southwood, 446 Mich 125, 136; 521 NW2d 230 (1994). As
such, “the terms of the provisions should be read in pari materia.” Id. Accordingly, a defendant




6
  The Legislature modified this provision on March 28, 2013, to begin the 91-day countdown
from service of the plaintiff’s affidavit of merit, instead of the mere filing of it. 2012 PA 609.
This procedural change is not relevant to our determination of this case.


                                                -4-
who claims immunity under the EMSA may not lose the benefit of that immunity merely by
failing to timely file an affidavit of meritorious defense under MCL 600.2912e.

        Here, plaintiff says that the trial court erred when it denied his motion for summary
disposition under MCR 2.116(C)(9), and motion for entry of a default under MCR 2.115(B),
because defendants did not file an affidavit of meritorious defense. However, defendants argued
that they were immune from plaintiff’s suit under the GTLA and the EMSA. They were
therefore not required to file an affidavit of meritorious defense, and the trial court correctly
denied plaintiff’s motions. Costa, 475 Mich at 412-13.7

                  B. GROSS NEGLIGENCE OR WILLFUL MISCONDUCT

       MCL 333.20965(1) states:

       Unless an act or omission is the result of gross negligence or willful misconduct,
       the acts or omissions of a medical first responder, emergency medical technician,
       emergency medical technician specialist, paramedic, medical director of a
       medical control authority or his or her designee . . . in a hospital before
       transferring patient care to hospital personnel, or in a clinical setting that are
       consistent with the individual’s licensure or additional training required by the
       medical control authority . . . or consistent with an approved procedure for that
       particular education program do not impose liability in the treatment of a patient
       on those individuals or any of the following persons:

                                              ***

       (f) The authoritative governmental unit or units. [MCL 333.20965(1) (emphasis
       added).]


7
  In any event, plaintiff is wrong that MCR 2.115(B) mandates an entry of default in the event a
defendant fails to file an affidavit of meritorious defense. Instead, a court, in the context of a
medical malpractice action, “may strike the answer and enter a default” under MCR 2.115(B).
Kowalski, 247 Mich App at 164 (emphasis added). Whether to enter a default or resort to lesser
remedies is left to the sound discretion of the court. See id. at 164-166. See also Costa v
Community Emergency Med Servs, Inc, 263 Mich App 572, 580-581; 689 NW2d 712 (2004),
aff’d in part and rev’d in part by 475 Mich 403 (“This Court has more than once rejected similar
assertions that a medical malpractice defendant’s failure to file an affidavit of meritorious
defense pursuant to MCL 600.2912e mandates a default or other preclusion of the defendant
from presenting a defense . . .”).
Here, the trial court properly chose not to enter a default. Defendant did “plead or otherwise
defend” against plaintiff’s allegations, by asserting immunity, under both the GTLA and the
EMSA. MCR 2.603. Plaintiff’s attempt to invalidate the trial court’s order on the basis of
defendant’s alleged failure to answer its complaint is thus the exact sort of hollow proceduralism
the Michigan Supreme Court cautioned against in Costa. See Costa, 475 Mich at 412-413 n 5.


                                               -5-
       “Gross negligence” is “conduct so reckless as to demonstrate a substantial lack of
concern for whether an injury results.” Jennings, 446 Mich at 136. “[E]vidence of ordinary
negligence does not create a material question of fact concerning gross negligence.” Maiden v
Rozwood, 461 Mich 109, 122-123; 597 NW2d 817 (1999). Further, “only evidence whose
content or substance is admissible can establish the existence of gross negligence . . . .” Id.
“Willful misconduct” is conduct with “intent to harm.” Jennings, 446 Mich at 140-141.

        Here, plaintiff unconvincingly argues that his pleadings and offers of proof created a
question of fact regarding whether defendants committed gross negligence or willful misconduct
in their medical response to McLain’s health emergency, which abrogates defendants’ immunity
from suit under MCL 333.20965. As the trial court noted, only two parts of the “volumes” of
evidence plaintiff submitted are relevant to showing defendants were responsible for the
incorrect location of the breathing tube: (1) the intern’s medical progress notes; and (2)
plaintiff’s unsupported assertions that Williams’ testimony was not credible. Neither is
sufficient to create a question of fact to abrogate defendant’s immunity from suit.

        Again, the medical progress notes were dictated by a medical intern, who, by his own
admission, did not have direct knowledge of where the tube was located, and did not know from
whom he received the information he recorded—including his notation that the tube was located
in McLain’s esophagus.8 As for plaintiff’s assertions that Williams’ testimony lacked credibility,
plaintiff did not present any testimony to oppose Williams’ version of events—he simply alleged
that they were wrong. Accordingly, the trial court correctly held9 that the medical progress notes
and plaintiff’s protestations against Williams’ credibility were insufficient to rebut defendants’
evidence that Williams did not commit any errors when he attended to McLain.10

        Because plaintiff did not submit evidence sufficient to create a question of fact as to the
“gross negligence” or “willful misconduct” of defendants’ actions under the EMSA, the trial
court properly granted defendants summary disposition under MCR 2.116(C)(7).




8
  As the trial court implied, the medical intern indicated at his deposition that the medical
progress notes were hearsay, and thus inadmissible. Though we do not reach the issue, because
adjudication on the matter is not necessary to resolve this case, it is possible that the medical
progress notes are admissible under the exception to the hearsay rule contained in MRE 803(6)
(records of “occurrences, . . . opinions, or diagnoses . . . kept in the course of a regularly
conducted business activity,” and not prepared in anticipation of litigation, may be admissible).
9
  See n 5 for the trial court’s discussion of both the medical progress notes and plaintiff’s
assertion that Williams lacked credibility.
10
  Plaintiff is barred from using res ipsa loquitur to abrogate defendants’ immunity under the
EMSA because “[w]hile the doctrine . . . may assist in establishing ordinary negligence, [it] is
not available where the requisite standard of conduct is gross negligence or wilful and wanton
misconduct.” Maiden, 461 Mich at 127.


                                                -6-
Affirmed.



                  /s/ Henry William Saad
                  /s/ Donald S. Owens
                  /s/ Kirsten Frank Kelly




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