Bryant v. Oakpointe Villa Nursing Centre, Inc

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 30, 2004

DENISE BRYANT, Personal Representative
of the Estate of Catherine Hunt, Deceased,

Plaintiff-Appellee,

v Nos. 121723, 121724

OAKPOINTE VILLA NURSING CENTRE,

Defendant-Appellant.
_______________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

In this case, plaintiff, Denise Bryant, personal

representative of the estate of her deceased aunt,

Catherine Hunt, alleges that defendant Oakpointe Villa

Nursing Centre, Inc. (Oakpointe), is liable for the death

of her aunt, who died from positional asphyxiation while in

defendant’s care. Plaintiff has alleged that defendant was

negligent in four distinct ways: (1) by failing to provide

“an accident-free environment” for her aunt; (2) by failing

to train its Certified Evaluated Nursing Assistants (CENAs)

to recognize and counter the risk of positional

asphyxiation posed by bed rails; (3) by failing to take

adequate corrective measures after finding Ms. Hunt
entangled in her bedding on the day before her

asphyxiation; and (4) by failing to inspect plaintiff’s bed

arrangements to ensure “that the risk of positional

asphyxia did not exist for plaintiff’s decedent.” We are

required in this appeal to determine whether each claim

sounds in medical malpractice or ordinary negligence.

Plaintiff’s “accident-free environment” claim is one

of strict liability; because medical malpractice requires

proof of negligence, this claim is not legally cognizable.

Moreover, under the standards set forth in Dorris v Detroit

Osteopathic Hosp Corp, 460 Mich 26; 594 NW2d 455 (1999),

plaintiff’s failure-to-train and failure-to-inspect claims

sound in medical malpractice. Plaintiff’s claim that

defendant failed to take action after its employees found

Ms. Hunt entangled in her bedding on the day before her

asphyxiation, however, sounds in ordinary negligence.

We reverse the judgment of the Court of Appeals and

remand this case to the Wayne Circuit Court for proceedings

on plaintiff’s claim of ordinary negligence and, given the

equities in this case, on her two medical malpractice

claims as well.

I. BACKGROUND

Plaintiff’s decedent, Catherine Hunt, was a resident

2

of Oakpointe. She suffered from multi-infarct dementia1 and

diabetes, had suffered several strokes, and required

twenty-four-hour-a-day care for all her needs, including

locomotion, dressing, eating, toileting, and bathing.

Hunt’s condition impaired her judgment and reasoning

ability and, in turn, caused cerebral atrophy. Hunt had no

control over her locomotive skills and was prone to sliding

about uncontrollably and, therefore, she was at risk for

suffocation by “positional asphyxia.”2

Because Hunt had no control over her locomotive

skills, Dr. Donald Dreyfuss, defendant’s medical director,

1
According to Tabers Cyclopedic Medical Dictionary
(2002), “dementia” constitutes

progressive, irreversible decline in mental
function, marked by memory impairment and, often,
deficits in reasoning, judgment, abstract
thought, registration, comprehension, learning,
task execution, and use of language. The
cognitive impairments diminish a person’s social,
occupational, and intellectual abilities.

“Multi-infarct dementia” constitutes

[d]ementia resulting from multiple small
strokes. . . . The cognitive deficits of multi-
infarct dementia appear suddenly, in “step-wise”
fashion. The disease is . . . most common in
patients with hypertension, diabetes mellitus, or
other risk factors for generalized
atherosclerosis. Brain imaging in patients with
this form of dementia shows multiple lacunar
infarctions. [Id.]
2
“Positional asphyxia refers to suffocation that
results when someone’s position prevents them from
breathing properly. See (accessed July 27, 2004).

3

authorized the use of various physical restraints. These

included bed rails to keep Hunt from sliding out of the

bed, as well as a restraining vest that kept her from

moving her arms, thereby impeding her ability to slide.

The authorized restraints also included wedges or bumper

pads that were placed on the outer edge of the mattress to

keep her from hurting herself by striking, or entangling

hereself in, the rails. The use of restraints of this sort

is regulated by the state of Michigan to prevent overuse

and excessive patient confinement, and must be authorized

by a physician.3

Several persons cared for Hunt on a twenty-four-hour

basis, including registered nurses, practical nurses, and

nursing assistants (CENAs). On March 1, 1997, nursing

assistants Monee Olds and Valerie Roundtree noticed that

Hunt was lying in her bed very close to the bed rails and

3
MCL 333.20201(2)(l) specifies, with regard to
restraints generally, that “[a] patient or resident is
entitled to be free from mental and physical abuse and from
physical and chemical restraints, except those restraints
authorized in writing by the attending physician for a
specified and limited time . . . .” Regarding bed rails in
particular, MCL 333.21734(1) provides, in relevant part:

A nursing home shall provide bed rails to a
resident only upon receipt of a signed consent
form authorizing bed rail use and a written order
from the resident's attending physician that
contains statements and determinations regarding
medical symptoms and that specifies the
circumstances under which bed rails are to be
used.

4

was tangled in her restraining vest, gown, and bedsheets.

They untangled her from her vest and gown and attempted to

position bed wedges onto decedent’s bed to prevent her from

slipping into a gap that existed between the mattress and

bed rail. The nursing assistants testified that they

informed their supervisor that the wedges were not sticking

properly and kept falling off, and that better care should

be taken in that regard for all patients or else the

patients could hurt or even fatally injure themselves.4

The next day, March 2, 1997, Hunt slipped between the

rails of her bed and was in large part out of the bed with

the lower half of her body on the floor but her head and

neck under the bed side rail and her neck wedged in the gap

between the rail and the mattress, thus preventing her from

breathing. When Hunt was extricated, she was transported

to a hospital. There was no recovery and, on March 4,

1997, she was taken off life support and died. The cause

of her death was listed as positional asphyxia.

Plaintiff filed a suit alleging ordinary negligence

against defendant in the Wayne Circuit Court in April 1998.

In May 1998, defendant moved for summary disposition

pursuant to MCR 2.116(C)(4) and (C)(8), on the basis that

plaintiff’s claims sounded in medical malpractice rather

4
Whether the CENAs actually made the report, as
plaintiff notes in its brief to this Court, is in dispute.

5

than ordinary negligence. In August 1998, Judge Pamela

Harwood ruled that plaintiff’s complaint sounded in

ordinary negligence and allowed the case to proceed. In

January 1999, Judge Harwood recused herself from the case

and it was reassigned to Judge John Murphy.

In June 1999, plaintiff filed a first amended

complaint still alleging ordinary negligence. It contained

three counts. These were, first, ordinary negligence “by

and through” defendant’s employees generally; second,

negligent infliction of emotional distress; and third,

gross negligence by defendant’s employees generally.

Plaintiff’s “ordinary negligence” count—the claim at issue

in this appeal—contained four distinct claims against

defendant:

(a) Negligently and recklessly failing to
assure that plaintiff’s decedent was provided
with an accident-free environment;

(b) Negligently and recklessly failing to
train CENAs to assess the risk of positional
asphyxia by plaintiff’s decedent despite having
received specific warnings by the United States
Food and Drug Administration about the dangers of
death caused by positional asphyxia in bed rails;

(c) Negligently and recklessly failing to
take steps to protect plaintiff’s decedent when
she was, in fact, discovered on March 1 entangled
between the bed rails and the mattress;

(d) Negligently and recklessly failing to
inspect the beds, bed frames and mattresses to
assure that the risk of positional asphyxia did
not exist for plaintiff’s decedent.

6

 In October 1999, defendant again moved for summary

disposition on the basis that plaintiff’s new claims of

ordinary negligence, in fact, sounded in medical

malpractice. Unlike Judge Harwood, Judge Murphy, in June

2000, agreed with defendant and ruled that plaintiff’s

“ordinary negligence” count sounded in medical malpractice.5

In addition, he ruled that, although ordinary negligence

claims could be brought against the nursing assistants

individually, these claims had not properly been pleaded.

The court therefore dismissed the complaint in its entirety

without prejudice.

Plaintiff appealed the dismissal to the Court of

Appeals. Meanwhile, however, seeking to comply with Judge

Murphy’s decision, plaintiff, in August 2000, filed a

notice of intent to sue in medical malpractice pursuant to

MCL 600.2912b and, in February 2001, refiled her case,

filing a second amended complaint alleging medical

malpractice. Defendant again brought a motion to dismiss

pursuant to 2.116(C)(7), on the basis that the two-year

medical malpractice period of limitations had expired.

Judge Murphy, in June 2001, disagreed and held that the

period of limitations was tolled when Judge Harwood issued

5
The trial court found that this case was
indistinguishable from Starr v Providence Hosp, 109 Mich
App 762; 312 NW2d 152 (1981), and Waatti v Marquette Gen
Hosp, Inc, 122 Mich App 44; 329 NW2d 526 (1982).

7

her August 1998 decision until that decision was reversed

by himself in June 2000. Defendant appealed this decision

to the Court of Appeals.

The Court of Appeals consolidated plaintiff’s appeal

from Judge Murphy’s June 2000 decision with defendant’s

appeal from his June 2001 decision. The Court of Appeals

held in plaintiff’s favor, finding that the case sounded in

ordinary negligence.6 The Court recognized that, having so

held, the issue regarding the tolling of the period of

limitations was moot. However, the Court concluded, in

dictum, that if plaintiff’s claim had sounded in medical

malpractice, Scarsella v Pollak, 461 Mich 547; 607 NW2d 711

(2000), would require its dismissal with prejudice.

Defendant appealed the Court of Appeals decision that

plaintiff’s case sounded in ordinary negligence, and we

granted leave to appeal in this case and in Lawrence v

Battle Creek Health Systems, 468 Mich 944 (2003), ordering

that the two cases be argued and submitted together.7

II. STANDARD OF REVIEW

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

6
Unpublished opinion per curiam, issued May 21, 2002
(Docket Nos. 228972, 234992).
7
468 Mich 943 (2003).

8

limitations, a court does so under MCR 2.116(C)(7). We

review such claims de novo. Fane v Detroit Library Comm,

465 Mich 68, 74; 631 NW2d 678 (2001). In making a decision

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. Fane, supra; see

also MCR 2.116(G)(5)-(6).

III. MEDICAL MALPRACTICE VS. ORDINARY NEGLIGENCE

The first issue in any purported medical malpractice

case concerns whether it is being brought against someone

who, or an entity that, is capable of malpractice. In

addressing this issue, defendant argues that, because MCL

600.5838a refers to “the medical malpractice of . . . an

employee or agent of a licensed health facility or agency

who is engaging in or otherwise assisting in medical care

and treatment,” plaintiff’s claim sounds in medical

malpractice for the simple reason that it alleges

negligence committed by an employee of a licensed health

care facility who was engaging in medical care and

treatment. In response, we point out that MCL 600.5838a(1)

is an accrual statute that indicates when a medical

malpractice cause of action accrues. Additionally, as we

noted in Adkins v Annapolis Hosp, 420 Mich 87, 94-95; 360

NW2d 150 (1984), this statute likewise expands the

9

traditional common-law list of those who are subject to

medical malpractice actions.8 However, we caution that,

although § 5838a expands the category of who may be subject

to a medical malpractice action, it does not define what

constitutes a medical malpractice action.9 The fact that an

8
In construing the former MCL 600.5838, in which, in
the context of an accrual statute, the Legislature listed a
wide array of specific health care professionals and
entities who could potentially be subject to medical
malpractice, we stated:

While it is true that [the former] RJA §
5838 is an accrual provision, not a definitional
section, there can be no other meaning of this
language other than that [those health care
occupations listed in the former § 5838] may be
guilty of malpractice. Otherwise, there would be
no reason to list those occupations in an accrual
section. A malpractice action cannot accrue
against someone who, or something that, is
incapable of malpractice.
. . . [The former § 5838] evidenced a
legislative intent to alter the common law and
subject other health professionals [as opposed to
physicians and surgeons only] to potential
liability for malpractice. [Adkins, 420 Mich 94-
95.]
The former § 5838 was amended by 1986 PA
178, as a result of which, the accrual provision
relevant to medical malpractice actions was
reenacted under the current § 5838a. Instead of
listing specific health care professionals and
entities subject to medical malpractice, the
current § 5838a refers generally to a “licensed
health care professional, licensed health
facility or agency, or an employee or agent of a
licensed health facility or agency who is
engaging in or otherwise assisting in medical
care and treatment . . . .”
9
Perhaps complicating an understanding of this body of
law is this Court’s unanimous peremptory order in 1998 in
Regalski v Cardiology Assoc, PC, 459 Mich 891 (1998). In

10

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.

The second issue concerns whether the alleged claim

sounds in medical malpractice. A medical malpractice claim

is distinguished by two defining characteristics. First,

medical malpractice can occur only “‘within the course of a

Regalski, we were presented with a case in which the Court
of Appeals had held that the plaintiff’s claim that the
defendant’s medical technician was negligent in assisting
the patient’s movement out of a wheelchair and onto the
examining table was a matter of ordinary negligence. We
reversed and concluded that this was not ordinary
negligence but medical malpractice.

While the facts of that case were only briefly stated,
we interpret this Court’s Regalski holding to mean that the
facts in that case led to the conclusion that the
particular assistance rendered to that patient involved a
professional relationship and implicated a medical
judgment.

Even in the wake of Regalski, then, injuries incurred
while a patient is being transferred from a wheelchair to
an examining table (to take one example) may or may not
implicate professional judgment. 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 as explained in Dorris.

In citing the medical malpractice accrual statute, MCL
600.5838a(1), in Regalski, we have caused some, including
defendant herein, to venture that we were holding that this
statute can also be understood as defining medical
malpractice. This understanding is incorrect for the
reasons that we have stated.

11

professional relationship.’” Dorris, supra at 45 (citation

omitted). Second, claims of medical malpractice

necessarily “raise questions involving medical judgment.”

Id. at 46. Claims of ordinary negligence, by contrast,

“raise issues that are within the common knowledge and

experience of the [fact-finder].” Id. Therefore, a court

must ask two fundamental questions in determining whether a

claim sounds in ordinary negligence or medical malpractice:

(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. If

both these questions are answered in the affirmative, the

action is subject to the procedural and substantive

requirements that govern medical malpractice actions.

In considering whether there has been a professional

relationship between the plaintiff and the defendant,

Dorris is central to our analysis. In that case, this

Court held: “‘The key to a medical malpractice claim is

whether it is alleged that the negligence occurred within

the course of a professional relationship.’” Id. at 45,

quoting Bronson v Sisters of Mercy Health Corp, 175 Mich

App 647, 652; 438 NW2d 276 (1989). A professional

relationship sufficient to support a claim of medical

malpractice exists in those cases in which a licensed

12

health care professional, licensed health care facility, or

the agents or employees of a licensed health care facility,

were subject to a contractual duty that required that

professional, that facility, or the agents or employees of

that facility, to render professional health care services

to the plaintiff. See Dyer v Trachtman, 470 Mich 45; 679

NW2d 311 (2004);10 Delahunt v Finton, 244 Mich 226, 230; 221

NW 168 (1928) (“Malpractice, in its ordinary sense, is the

negligent performance by a physician or surgeon of the

duties devolved and incumbent upon him on account of his

contractual relations with his patient.”);11 see also Hill v

Kokosky, 186 Mich App 300, 302-303; 463 NW2d 265 (1990);

Oja v Kin, 229 Mich App 184, 187; 581 NW2d 739 (1998).

After ascertaining that the professional relationship

test is met, the next step is determining whether the claim

raises questions of medical judgment requiring expert

10
We held in Dyer that in an action for negligence in
performing an independent medical examination (IME), the
plaintiff’s claim sounded in medical malpractice rather
than ordinary negligence, but that a physician incurred
only a limited form of medical malpractice liability in
performing the IME. Id. This conclusion was based on the
contractual relationship between the parties.
11
When the Delahunt decision was rendered in 1928,
only physicians and surgeons could be sued in medical
malpractice. See, for example, Kambas v St Joseph’s Mercy
Hosp of Detroit, 389 Mich 249; 205 NW2d 431 (1973). As
observed in n 8, the Legislature has since expanded the
common-law list of those who potentially may be subject to
medical malpractice liability. See MCL 600.5838a; Adkins,
420 Mich 94-95.

13

testimony or, on the other hand, whether it alleges facts

within the realm of a jury’s common knowledge and

experience. 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. As we

stated in Dorris:

The determination whether a claim will be
held to the standards of proof and procedural
requirements of a medical malpractice claim as
opposed to an ordinary negligence claim depends
on whether the facts allegedly raise issues that
are within the common knowledge and experience of
the jury or, alternatively, raise questions
involving medical judgment. [Dorris, supra at
46, citing Wilson v Stilwill, 411 Mich 587, 611;
309 NW2d 898 (1981).]

Contributing to an understanding of what constitutes a

“medical judgment” is Adkins v Annapolis Hosp, 116 Mich App

558; 323 NW2d 482 (1982), in which the Court of Appeals

held:

[M]edical malpractice . . . has been defined
as the failure of a member of the medical
profession, employed to treat a case
professionally, to fulfill the duty to exercise
that degree of skill, care and diligence
exercised by members of the same profession,
practicing in the same or similar locality, in
light of the present state of medical science.

14

 [Citation omitted.]

IV. ANALYSIS OF ALLEGATIONS

We now turn to the complaint in the present case.12

Plaintiff alleges that defendant is liable for: (1)

negligently failing to assure that plaintiff’s decedent was

provided with an accident-free environment; (2) negligently

failing to inspect the bed, bed frame, and mattress to

assure the plaintiff’s decedent was not at risk of

suffocation; (3) negligently failing to properly train its

CENAs regarding the risk to decedent of positional

asphyxiation posed by the bed rails; and (4) negligently

failing to take steps to protect decedent from further harm

or injury after discovering her entangled between her bed

rail and mattress on March 1. We address the application

of Dorris to each of these claims below.13

A. PROFESSIONAL RELATIONSHIP

The first question in determining whether these claims

sound in ordinary negligence or medical malpractice is

whether there was a professional relationship between the

12
Because the Court of Appeals majority in this case
based its decision on plaintiff’s June 1999 first amended
complaint, we will use the claims in that complaint to
analyze this case.
13
As stated, we address only Count I of plaintiff’s
first amended complaint. Counts II and III (negligent
infliction of emotional distress and gross negligence) may
be addressed by the parties on remand in light of our
decision regarding count I.

15

allegedly negligent party and the injured party. This

analysis is fairly straightforward and, in this case, is

identical for each of plaintiff’s claims. Because

defendant, Oakpointe Villa Nursing Centre, Inc., a licensed

health care facility, was under a contractual duty

requiring both it and its employees to render professional

health care services to plaintiff’s decedent, a

professional relationship existed to support a claim for

medical malpractice.

B. MEDICAL JUDGMENT VS. LAY KNOWLEDGE

The second question is whether the acts of negligence

alleged “raise issues that are within the common knowledge

and experience of the jury or, alternatively, raise

questions involving medical judgment.” Dorris, supra at

46.

1. “ACCIDENT-FREE ENVIRONMENT”

Plaintiff’s first claim is that defendant “fail[ed] to

assure that plaintiff’s decedent was provided with an

accident-free environment.” This is an assertion of strict

liability that is not cognizable in either ordinary

negligence or medical malpractice. With reference to

ordinary negligence, the test is whether the defendant

breached a duty that proximately caused an injury to the

plaintiff. See, e.g., Haliw v Sterling Hts, 464 Mich 297,

309-310; 627 NW2d 581 (2001). With reference to medical

16

malpractice law, the Legislature has directed in MCL

600.2912a et seq., that negligence is the standard. Thus,

strict liability is inapplicable to either ordinary

negligence or medical malpractice. As a result, because

this claim is unrecognized in this area of our law, this

allegation states no claim at all.

2. FAILURE TO TRAIN

Next, we must determine whether plaintiff’s claim that

defendant failed to train its staff “to assess the risk of

potential asphyxia” is one that requires expert testimony

on medical issues. In Dorris at 47, we stated that the

plaintiff’s allegations “concerning staffing decisions and

patient monitoring involve questions of professional

medical management and are not issues of ordinary

negligence that can be judged by the common knowledge and

experience of a jury.” That is not to say, however, that

all cases concerning failure to train health care employees

in the proper monitoring of patients are claims that sound

in medical malpractice. The pertinent question remains

whether the alleged facts raise questions of medical

judgment or questions that are within the common knowledge

and experience of the jury. Id. at 46.

In Dorris, the staff training and patient monitoring

issue sounded in medical malpractice because “[t]he

ordinary layman does not know the type of supervision or

17

monitoring that is required for psychiatric patients in a

psychiatric ward.” Id. at 47 (emphasis added). That is,

knowing how to correctly monitor psychiatric patients

requires a specialized knowledge of the complex diseases of

the mind that may affect psychiatric patients and how those

diseases may influence their behavior, and such knowledge

is simply not within the realm of “common knowledge.”

Similarly, in order to assess the risk of positional

asphyxiation posed by bed railings, specialized knowledge

is generally required, as was notably shown by the

deposition testimony of plaintiff’s own expert, Dr. Steven

Miles. Dr. Miles testified that hospitals may employ a

number of different bed rails depending on the needs of a

particular patient.14 Accordingly, the assessment of

whether a bed rail creates a risk of entrapment for a

patient requires knowledge of that patient’s medical

history and behavior.15 It is this particularized

14
Deposition Testimony of Dr. Steven Miles (“Well,
first off, there’s no such thing as generic side rails.”).
15
Dr. Miles testified:

Q. Okay. When you indicated that [Hunt]
required assistance for activities of daily
living, are all persons who require assistance
for such activities at risk for entrapment?

A. No. As I stated in my previous comment,
that the overall profile is one of being frail
and disabled and having poor judgment and a
history of impulsive behavior and a history of

18

knowledge, according to Dr. Miles, that should prompt a

treating facility to use the bedding arrangement that best

suits a patient’s “individualized treatment plan,” and to

properly train its employees to recognize any risks

inherent in that bedding arrangement and to adequately

monitor patients to minimize those risks.

In describing the appropriate arrangement for

plaintiff’s decedent, Dr. Miles testified:

This patient had a long history of slide and
fall-type injuries, and her entire environment
should have been adjusted as part of the
individualized treatment plan for this.

And furthermore, the facility had a general
obligation to all of its patients, including Ms.
Hunt, to provide beds that did no prevent—present
a space that was large enough for an entrapment
asphyxiation. And they should have been
particularly aggressive in using that type of
equipment for Ms. Hunt.

This testimony demonstrates that the ability to assess the

risk of positional asphyxia and, thus, the training of

employees to properly assess that risk, involves the

exercise of professional judgment. The picture necessarily

gets more complicated when one considers additional

restraint mechanisms used in tandem with bed railing such

as vests or pelvic restraints to promote the safety of

patients.

previous near entrapments. These are the people
who are at risk, not the presence of any one of
those.

19

 Indeed, an article in the Journal of the American

Geriatrics Society coauthored by plaintiff’s expert, Dr.

Miles, stresses the need for “clinical and ergonomic

changes” in the use of bed rails and decries the widespread

use of bed railings “without . . . a clear sense of their

role in a treatment plan and without regulatory attention

to their design.”16 This article concludes with a call for

nursing homes to limit the use of bedrails, but notes that

research into the relative costs and benefits of using

bedrails is “needed urgently.”17

This much is clear: in order to determine whether

defendant adequately trained its CENAs to recognize the

risks posed by particular configurations of bed rails and

other prescribed restraint systems, therefore, the fact-

finder will generally require expert testimony on what

specialists in the use of these systems currently know

about their risks and on how much of this knowledge

defendant ought to have conveyed to its staff.

Given the patent need in this case for expert

testimony regarding plaintiff’s claim of failure to train,

we conclude that this claim sounds in medical malpractice

under Dorris.

16
Kara Parker and Steven H. Miles, Deaths caused by
bedrails, 45 J Am Geriac Soc 797 (1997).
17
Id., p 799.

20

 3. FAILURE TO INSPECT

Next, plaintiff alleges that defendant is liable for

“[n]egligently and recklessly failing to inspect the beds,

bed frames and mattress to assure that the risk of

positional asphyxia did not exist for plaintiff’s

decedent.” It is clear from the record in this case that

plaintiff’s “failure to inspect” claim is not that

defendant and its agents actually failed to check Ms.

Hunt’s bedding arrangements,18 but that defendant failed to

recognize that her bedding arrangements posed a risk of

asphyxiation.

As shown above, and as demonstrated through the

deposition testimony of plaintiff’s expert, the risk of

asphyxiation posed by a bedding arrangement varies from

patient to patient. The restraining mechanisms appropriate

for a given patient depend upon that patient’s medical

history. Thus, restraints such as bed railings are, in the

terminology of plaintiff’s expert physician, part of a

patient’s “individualized treatment plan.”

The risk assessment at issue in this claim, in our

judgment, is beyond the ken of common knowledge, because

18
Indeed, plaintiff repeatedly stresses that
defendant’s agents saw the gap between the bed and the
railing and failed to recognize that this gap created a
risk of asphyxiation. See § IV(B)(4) later in this
opinion.

21

such an assessment require understanding and consideration

of the risks and benefits of using and maintaining a

particular set of restraints in light of a patient’s

medical history and treatment goals. In order to determine

then whether defendant has been negligent in assessing the

risk posed by Hunt’s bedding arrangement, the fact-finder

must rely on expert testimony. This claim, like the claim

described above, sounds in medical malpractice.

4. FAILURE TO TAKE STEPS

We turn, finally, to a claim fundamentally unlike

those discussed previously. Plaintiff alleges that

defendant “[n]egligently and recklessly fail[ed] to take

steps to protect plaintiff’s decedent when she was, in

fact, discovered on March 1 [1997] entangled between the

bed rails and the mattress.”

This claim refers to an incident on March 1, 1997—the

day before Ms. Hunt was asphyxiated—when two of defendant’s

CENAs found Ms. Hunt tangled in her bedding and dangerously

close to asphyxiating herself in the bed rails. According

to the CENAs, they moved Ms. Hunt away from the rail and

informed their supervising nurses that Ms. Hunt was at risk

of asphyxiation.

Plaintiff now contends, therefore, that defendant had

notice of the risk of asphyxiation through the knowledge of

its agents and, despite this knowledge of the problem,

22

defendant did nothing to rectify it. It bears repeating

that plaintiff’s allegation in this claim is not that

defendant took inappropriate steps in dealing with the

patient’s compulsive sliding problem or that defendant’s

agents were negligent in creating the hazard in the first

place. Instead, plaintiff claims that defendant knew of

the hazard that led to her death and did nothing about it.

This claim sounds in ordinary negligence. No 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 the hazard. The

fact-finder can 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.

Suppose, for example, that two CENAs employed by

defendant discovered that a resident had slid underwater

while taking a bath. Realizing that the resident might

drown, the CENAs lift him above the water. They recognize

that the resident’s medical condition is such that he is

likely to slide underwater again and, accordingly, they

notify a supervising nurse of the problem. The nurse,

then, does nothing at all to rectify the problem, and the

resident drowns while taking a bath the next day.

If a party alleges in a lawsuit that the nursing home

23

was negligent in allowing the decedent to take a bath under

conditions known to be hazardous, the Dorris standard would

dictate that the claim sounds in ordinary negligence. No

expert testimony is necessary to show that the defendant

acted negligently by failing to take any corrective action

after learning of the problem. A fact-finder relying only

on common knowledge and experience can readily determine

whether the defendant’s response was sufficient.

Similarly, no expert testimony is required here in

order to determine whether defendant was negligent in

failing to respond after its agents noticed that Ms. Hunt

was at risk of asphyxiation. Professional judgment might

be implicated if plaintiff alleged that defendant responded

inadequately, but, given the substance of plaintiff’s

allegation in this case, the fact-finder need only

determine whether any corrective action to reduce the risk

of reccurrence was taken after defendant’s agents noticed

that Ms. Hunt was in peril. Thus, plaintiff has stated a

claim of ordinary negligence under the standards

articulated in Dorris.

V. STATUTE OF LIMITATIONS

Having decided that three of plaintiff’s claims sound

in medical malpractice, we must determine whether

plaintiff’s medical malpractice claims are now time-barred.

See MCR 2.116(C)(7).

24

 The period of limitations for a medical malpractice

action is ordinarily two years. MCL 600.5805(6).

According to MCL 600.5852, plaintiff had two years from the

date she was issued letters of authority as personal

representative of Hunt’s estate to file a medical

malpractice complaint. Because the letters of authority

were issued to plaintiff on January 20, 1998, the medical

malpractice action had to be filed by January 20, 2000.

Thus, under ordinary circumstances, plaintiff’s February 7,

2001, medical malpractice complaint (her third complaint in

total) would be time-barred.

The equities of this case, however, compel a different

result. The distinction between actions sounding in

medical malpractice and those sounding in ordinary

negligence is one that has troubled the bench and bar in

Michigan, even in the wake of our opinion in Dorris.

Plaintiff’s failure to comply with the applicable statute

of limitations is the product of an understandable

confusion about the legal nature of her claim, rather than

a negligent failure to preserve her rights. Accordingly,

for this case and others now pending that involve similar

procedural circumstances, we conclude that plaintiff’s

medical malpractice claims may proceed to trial along with

plaintiff's ordinary negligence claim. MCR 7.316(A)(7).

However, in future cases of this nature, in which the line

25

between ordinary negligence and medical malpractice is not

easily distinguishable, plaintiffs are advised as a matter

of prudence to file their claims alternatively in medical

malpractice and ordinary negligence within the applicable

period of limitations.19

VI. CONCLUSION

Plaintiff has stated two claims that require expert

testimony and therefore sound in medical malpractice.

Although these claims were filed after the applicable

period of limitations had run and would ordinarily be time-

barred, the procedural features of this case dictate that

plaintiff should be permitted to proceed with her medical

malpractice claims. The claim that defendant negligently

failed to respond after learning that Ms. Hunt’s bedding

arrangements created a risk of asphyxiation sounds in

ordinary negligence. Finally, plaintiff’s claim regarding

an “accident-free environment” sounds in strict liability

and is not cognizable. Accordingly, we reverse the

judgment of the Court of Appeals and remand this case to

the circuit court for further proceedings consistent with

19
If the trial court thereafter rules that the claim
sounds in ordinary negligence and not medical malpractice,
and may thus proceed in ordinary negligence, and this
ruling is subsequently reversed on appeal, the plaintiff
will nonetheless have preserved the right to proceed with
the medical malpractice cause of action by having filed in
medical malpractice within the period of limitations.

26

this opinion.
Stephen J. Markman
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.

27

 S T A T E O F M I C H I G A N

SUPREME COURT

DENISE BRYANT, personal
representative of the estate
of Catherine Hunt, deceased,

Plaintiff-Appellee,

v Nos. 121723-121724

OAKPOINTE VILLA NURSING CENTRE,
INC.,

Defendant-Appellant.
_______________________________

KELLY, J. (dissenting).

The question in this case is whether plaintiff's

claims sound in medical malpractice or ordinary negligence.

I disagree with the majority’s reading of plaintiff’s

complaint and believe that all of plaintiff’s claims sound

in ordinary negligence. I also disagree with the

majority’s analysis of the statute of limitations issue.

BACKGROUND

Plaintiff's decedent was a resident of defendant’s

nursing care facility. Among her needs were safety

restraints on her bed to prevent her from falling out and

injuring herself. In early 1997, defendant’s nurses’

assistants noted that she had developed a propensity to

move around in bed. Because of her petite stature and the

configuration of the bed, she was in danger of slipping
under the bedrails and catching her neck. This could lead

to strangulation and death.

Shortly after, the assistants’ fears were realized.

First, they discovered plaintiff’s decedent “tangled up in

the rails,” her clothes, and the bedding. They

successfully extricated her, but feared that she was in

grave danger of being hanged. Yet, no change was made in

the restraint configuration. The next day, she was

discovered caught by her neck under the rails. This time,

she did not recover. She died two days later after being

removed from life support.

Plaintiff brought suit against the facility.

Following pretrial motions for summary disposition,

plaintiff was allowed to file a first amended complaint in

June 1999. She alleged three counts of negligence:

ordinary negligence, negligent infliction of emotional

distress, and gross negligence.1 Ante at 6. Central to the

resolution of this case is plaintiff’s count for ordinary

negligence.

The ordinary negligence count consisted of four

distinct claims. The first was that defendant, by

1
Plaintiff alleged that defendant negligently
inflicted emotional distress on her by attempting to
conceal the true circumstances of her decedent's death.
The third count alleged that the nurses’ assistants were
grossly negligent for failing to inform their supervisors
that they had found decedent entangled in her bedding the
day before her death.

2

providing medical care and housing to plaintiff’s decedent,

owed her decedent a duty to provide an accident-free

environment. Defendant had a duty, plaintiff asserted, to

assure that plaintiff’s decedent was not subjected to an

unreasonable risk of injury.

Second, plaintiff asserted that defendant breached its

duty to train its staff to recognize the danger posed by

bedrails. According to plaintiff’s complaint, defendant

had received specific information about this danger from

the United States Food and Drug Administration (FDA). The

allegation is that defendant failed to take precautions or

share this information with its staff.

Third, plaintiff asserted that defendant discovered

plaintiff’s decedent caught between the rails and mattress.

Plaintiff complains that defendant failed to prevent a

recurrence by not remedying the rails-mattress

configuration.

Fourth, plaintiff asserted that defendant had failed

to inspect the bed’s configuration to ensure that a danger

of strangulation was not present.

Defendant moved for summary disposition under MCR

2.116(C)(7), and the circuit court granted the motion. It

determined that plaintiff’s ordinary negligence claims were

really allegations of medical malpractice.

Plaintiff appealed to the Court of Appeals. She also

3

took measures to preserve her claims as malpractice claims

by filing an amended complaint and a notice of intent to

sue pursuant to MCL 600.2912b. Defendant moved to dismiss,

asserting that the suit was time-barred under the medical

malpractice statutory period of limitations. MCL

600.5805(6). When the circuit court held that the

statutory period had been tolled, defendant went to the

Court of Appeals.

The Court of Appeals consolidated both parties'

appeals. It concluded that plaintiff's claims sounded in

ordinary negligence, adding that they would be barred by

the limitations period if they sounded in medical

malpractice. Unpublished opinion per curiam, issued May

21, 2002 (Docket Nos. 228972, 234992). We granted

defendant’s subsequent application for leave to appeal.2

468 Mich 943 (2003).

The majority determines that only one of plaintiff’s

claims sounds in ordinary negligence, that another is not

cognizable under Michigan law, and that the other two are

medical malpractice claims. It bases its holding on two

facts: One, defendant did not respond at all upon finding

plaintiff’s decedent entangled in her bedding and,

therefore, one of plaintiff’s claims is for ordinary

2
We also ordered that the case be argued and submitted
with Lawrence v Battle Creek Health Systems, 468 Mich 944
(2003).

4

negligence. Two, the use of bedrails must be prescribed by

a medical professional and, therefore, the remaining claims

necessarily sound in medical malpractice.

STANDARD OF REVIEW

We review motions for summary disposition under MCR

2.116(C)(7) de novo. We accept the allegations in the

complaint and documentary evidence as true unless other

documents specifically contradict them. Fane v Detroit

Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).

MEDICAL MALPRACTICE VERSUS ORDINARY NEGLIGENCE

In Adkins v Annapolis Hosp,3 we recognized that

ordinary negligence could occur in the course of medical

care. In this case, plaintiff is alleging that ordinary

negligence occurred. She does not dispute that a

professional medical relationship existed between defendant

and her decedent. But she relies on the established fact

that every medical professional remains under a duty to

exercise reasonable care. Also, professional standards of

medical care supplement but do not necessarily supplant the

ordinary duty of care.

Various differences exist between medical malpractice

and negligence. When medical malpractice occurs, there has

been a failure or omission that cannot be assessed by a

3
420 Mich 87; 360 NW2d 150 (1984). See also Dyer v
Trachtman, 470 Mich 45, 54 n 5; 679 NW2d 311 (2004).

5

layperson; it involves a matter that requires the exercise

of professional medical judgment. Without expert

testimony, the ordinary juror cannot determine if a

defendant medical professional has fulfilled its duty of

professional care. Dorris v Detroit Osteopathic Hosp Corp,

460 Mich 26, 47; 594 NW2d 455 (1999). By contrast, expert

witnesses are not always required in ordinary negligence

actions because the trier of fact can often rely on its own

common knowledge and experience. In addition, medical

malpractice actions involve the alleged breach of medical

standards of care; negligence actions do not.

THE NEGLIGENCE ALLEGED

Here, plaintiff’s amended complaint alleged that

defendant was negligent in four ways. Defendant is alleged

to have breached its duties to

(a) . . . assure that plaintiff’s decedent
was provided with an accident-free environment;
(b) . . . train [nurses’ assistants] to
assess the risk of positional asphyxia by
plaintiff’s decedent despite having received
specific warnings . . . ;
(c) . . . take steps to protect plaintiff’s
decedent when she was, in fact, discovered on
March 1 [1997] entangled between the bed rails
and the mattress;
(d) . . . inspect the beds, bed frames and
mattresses to assure that the risk of positional
asphyxia did not exist for plaintiff’s decedent.
With respect to the first claim, I disagree with the

majority that plaintiff’s assertion of a duty to provide an

accident-free environment is not cognizable under Michigan

6

law. Ante at 17-18. We have consistently held that the

nature of the claim alleged is based on the underlying

facts. It is independent of the words used to describe it.

See Dorris at 43.

Plaintiff's decedent was in defendant’s custodial

care. As the Court of Appeals stated, defendant was

obligated to take reasonable precautions to provide a

reasonably safe environment. Unpublished opinion per

curiam, issued May 21, 2002 (Docket Nos. 228972, 234992),

citing Owens v Manor Health Care Corp, 159 Ill App 3d 684,

688; 512 NE2d 820 (1987). A breach of this duty can

support a claim for ordinary negligence. Plaintiff's first

claim should be read to mean that defendant was obligated

to provide an environment free of negligently caused

accidents.

Contrary to the majority’s reading of this claim,

plaintiff has not asserted that defendant was the guarantor

of the safety of plaintiff's decedent. The ordinary juror

can assess whether defendant’s alleged actions or inactions

constituted reasonable measures to fulfill its duty.

The second claim is that defendant breached its duty

to train its nurses’ assistants. I agree with the majority

that assessing the medical needs of patients requires

medical expertise. Similarly, assessing whether those

needs were adequately addressed requires medical expertise.

7

See part IV(B)(2) ante. However, a fair reading of this

claim reveals that plaintiff is not challenging defendant’s

assessment of her decedent’s medical needs. Moreover,

plaintiff is not challenging whether bed rails and other

restraints were appropriately prescribed.

Instead, plaintiff asserts that defendant knew of the

dangers posed by bed rails, yet, it took no steps to pass

this information along to its employees. As the majority

opines,

[n]o expert testimony is necessary to determine
whether [defendant] should have taken some sort
of corrective action to prevent future harm after
learning of the hazard. The fact-finder can 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.[4]
“Some sort of corrective action” may include, as plaintiff

alleges, training employees or passing along specific

information to them that it has learned from other

employees or the FDA. Plaintiff asserts that defendant

failed to act once it had knowledge of a hazard, not that

it breached a medical standard of care. Hence, this claim

sounds in ordinary negligence as well.

Plaintiff’s third and fourth claims concern

defendant’s actions with respect to her decedent becoming

entangled in the bedding. Plaintiff alleged that defendant

4
See ante at 24, discussing plaintiff’s claim for
defendant’s failure to respond after initially finding
plaintiff's decedent entangled in her bedding.

8

failed to “take steps to protect plaintiff’s decedent when

she was, in fact, discovered on March 1 [1997] entangled

between the bed rails and the mattress” and to “inspect the

beds, bed frames and mattresses to assure that the risk of

positional asphyxia did not exist for plaintiff’s

decedent.”

Plaintiff asserts that the nurses’ assistants employed

by defendant failed to notify their supervisors when

plaintiff’s decedent was found caught in the bedrails on

the first occasion. Alternatively, plaintiff asserts that

a warning was given to the supervisors that they

disregarded.

Again, plaintiff states: they “[n]egligently and

recklessly fail[ed] to inspect the beds, bed frames and

mattresses to assure that the risk of positional asphyxia

did not exist . . .” and “to take steps to protect

plaintiff’s decedent . . . .” These allegations assert the

breach of a duty of due care owed by defendant to

plaintiff’s decedent that can be evaluated by ordinary

jurors.

Defendant’s nurses’ assistants were alerted to the

danger when two of them first found plaintiff’s decedent

trapped in the bedrails. One specifically testified that,

although she did not comprehend the medical needs of

plaintiff’s decedent, she recognized that the decedent was

9

in serious physical danger. She expressed to her

supervisor her fear that the elderly woman would be found

dead if something were not done.

Plaintiff has presented evidence that defendant’s

nurses’ assistants did not require medical training to

understand that this small, frail person could again slip

under the bedrail and jam her neck, endangering her life.

Medical training was not needed to instruct them that the

bedrail-mattress configuration had to be changed.

Laypersons can properly assess whether the manner in

which bedrails and mattresses are configured creates an

unreasonable risk of harm to a person like plaintiff's

decedent. The claims do not involve the breach of a

medical standard of care. They involve simple neglect to

act or ordinary negligence, as the majority concedes.

Unlike the majority, I do not place undue emphasis on

the fact that the nurses’ assistants had previously

discovered plaintiff's decedent in a dangerous position.

Ante at 25. Any person caring for her could have

recognized the danger that the bedding posed to a petite,

frail, and elderly person who lacked normal control over

her movements.5

5
One nurses’ assistant testified that she recognized
the dangerous bedding arrangement that entangled
plaintiff's decedent on a previous occasion even though she
was not plaintiff’s decedent’s usual caregiver. This

10

 The danger here was similar to that experienced by an

infant in a crib whose mattress is too small and whose

rails allow the baby to slip through. Those caring for

such a child would quickly recognize the danger, and an

expert would not be required to point it out. Similarly,

ordinary jurors can assess whether defendant's caregivers

here should have recognized the danger and acted with due

care.

As stated earlier in this opinion, the nature of the

claim is independent of the words used to describe it.

Plaintiff used the proper term “positional asphyxia” to

describe being hanged. However, use of the medical term

does not transform plaintiff's negligence claim into one

sounding in malpractice.

Defendant’s supposition that ordinary people are

incapable of recognizing an obvious danger of hanging is

untenable, particularly here where untrained people

actually did recognize the danger. The assessment of a

hazard does not require professional training merely

because a professional is capable of assessing it as well

and can explain the exact mechanism of the danger. If that

were true, a physical science expert would be required in

this case as well as a medical one. That expert would be

assistant had not had an opportunity to observe plaintiff's
decedent for a prolonged period.

11

needed to inform the jury how plaintiff’s decedent was in

danger of strangulation because gravity would pull her down

once she slipped beneath the bedrails.

STATUTE OF LIMITATIONS

Generally the period of limitations is tolled at the

time the complaint is filed. MCL 600.5856(a). The period

for an action premised on ordinary negligence is three

years. MCL 600.5805(10); Stephens v Dixon, 449 Mich 531;

536 NW2d 755 (1995). Plaintiff’s decedent died in March

1997, and plaintiff brought her action in April 1998. This

was well within the period of limitations applicable to

ordinary negligence actions, as well as wrongful death

actions premised on medical malpractice. MCL 600.5852; MCL

600.5805(6). Still well within the applicable period of

limitations, the trial court initially ruled that

plaintiff’s claim sounded in ordinary negligence. Thus,

under MCL 600.5856(a), the period of limitations was

tolled.

I believe that plaintiff and other similarly situated

litigants are entitled to rely on a trial court’s decision

that their case sounds in ordinary negligence. The filing

of plaintiff's ordinary negligence complaint tolled the

period of limitations, at least until the new trial judge

reversed that decision.

“Plaintiff’s failure to comply with the applicable

12

statute of limitations” was less the “product of [her]

understandable confusion about the legal nature of her

claim . . .”6 and more the product of plaintiff’s

justifiable reliance on the trial court’s initial ruling.

This Court need not resort to equity to save

plaintiff’s so-called medical malpractice claims. MCL

600.5856(a) and the initial trial court decision dictated

that plaintiff’s filing of the ordinary negligence

complaint tolled the running of the period of limitations.

Finally, the majority’s “prudent” decision that

obliges someone injured by a negligent medical practitioner

to allege alternate theories of medical malpractice and

ordinary negligence pertaining to a single injury is ill-

conceived. It needlessly complicates and impedes the

injured person's efforts to recover through the courts from

those responsible for his plight. The majority’s free and

unsolicited advice sends the wrong message to the bench and

bar, and places an undue burden on injured people.

CONCLUSION

In this case, plaintiff has alleged that defendant had

notice of a risk of harm that was readily apparent to the

layperson and could have been rectified by a layperson.

She has also alleged that, after receiving notice of the

danger, defendant negligently missed several opportunities

6
Ante at 26.

13

to avert it.

Medical expertise is not required to determine whether

defendant’s nonresponses constituted a failure to take

ordinary care. An expert could render an opinion on the

issues in this case, but it is unnecessary because the case

does not raise questions of medical judgment. It does not

involve the breach of medical standards of care. Instead,

the issues are within the common knowledge and experience

of lay jurors. Hence, plaintiff should be enabled to

proceed under a theory of ordinary negligence.

Moreover, if any of plaintiff’s claims did sound in

medical malpractice, more than the equities of this case

require that plaintiff be allowed to proceed; plaintiff

reasonably relied on the decisions of the lower courts that

all her claims sound in ordinary negligence.

The decision of the Court of Appeals should be

affirmed to the extent that it found that all of

plaintiff's claims sound in negligence.

Marilyn Kelly
Michael F. Cavanagh

14