If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JONATHAN SCHIRMER and DEBBIE UNPUBLISHED
SCHIRMER, September 14, 2023
Plaintiffs-Appellants,
v No. 362129
Alpena Circuit Court
JAMES ROBERT WILLIAMS, ROBERT L. LC No. 2017-008120-NO
HUNTER, SR., and NORTH FLIGHT, INC.,
Defendants-Appellees.
Before: SWARTZLE, P.J., and O’BRIEN and FEENEY, JJ.
PER CURIAM.
Plaintiffs, Jonathan Schirmer and Debbie Schirmer, appeal as of right the trial court’s order
granting defendants’ motion for summary disposition under MCR 2.116(C)(7). We reverse and
remand for further proceedings.
I. BACKGROUND
On August 2, 2016, Jonathan was admitted to MidMichigan Medical Center (MMC) in
Alpena due to concerns that he was experiencing a heart attack. Jonathan sought to be treated by
his primary care physician at a different hospital—McLaren North in Petoskey—but no beds were
available at that hospital until August 3, so he stayed at MMC overnight.
The following day, a nurse practitioner signed a transfer authorization form for ambulance
services provided by defendant North Flight, Inc. That form stated that Jonathan’s physical
condition made “transportation by ambulance medically necessary” in part because “[t]ravel by
means other than ambulance (i.e., private vehicle) could endanger [the] patient’s health” given the
possibility of an “MVA” (motor vehicle accident). Jonathan’s transfer via ambulance was not
considered an emergency because he was stable.
Defendant Robert L. Hunter, Sr., was the paramedic for the ambulance provided by North
Flight, and defendant James Robert Williams was the driver and emergency medical technician
-1-
(EMT). During the transport, Hunter provided cardiac monitoring, administered heparin
intravenously, and checked Jonathan’s vital signs every 30 minutes.
The events giving rise to this case occurred after the ambulance arrived at McLaren North,
and were captured by the hospital’s security camera. Williams backed the ambulance into the
hospital’s entryway, exited, walked to the ambulance’s rear, and opened the doors. Hunter then
exited and stood off to the side to allow Williams to begin the offloading process. Williams
proceeded to pull Jonathan’s cot out of the ambulance with Jonathan strapped in. As Williams
pulled, the safety latch attached to the ambulance’s floor did not catch the safety bar attached to
the cot’s head. Plaintiffs’ expert, Timothy Robbins, opined that, based on his review of the
ambulance’s service records and North Flight’s representation after the incident that the safety
latch was functioning normally at the relevant times, the safety latch did not catch because Hunter
prematurely released it. Robbins further noted that Williams never verified that the latch was
engaged while he continued pulling Jonathan’s cot out of the ambulance, and Hunter failed to
visualize the safety hook catching the safety bar while Williams continued pulling. But regardless
of why the safety latch did not catch the cot’s safety bar, the result was that the safety latch never
stopped the cot’s progress, so the cot fully came out of the ambulance, knocked Williams to the
ground, and fell sideways onto the pavement with Jonathan strapped to it. Both Hunter and
Williams quickly attended to Jonathan, unstrapped him, and helped him onto his feet.
On November 6, 2017, plaintiffs filed a civil complaint against defendants, alleging that
the incident and their physical and emotional injuries were caused by defendants’ negligence or
gross negligence. Plaintiffs’ complaint alleged that, while pulling Jonathan out of the ambulance,
Williams “lost control of the stretcher, which did not latch and or its wheeled legs did not extend
downward, and [Jonathan] was caused to fall . . . .” Plaintiffs claimed that Williams and Hunter
owed a duty to plaintiffs “to operate, maintain, load, and unload the [ambulance] in a reasonably
safe manner consistent with Michigan common law, statutes, and local ordinances,” and that they
breached those duties in the following ways:
a. By dropping Plaintiff JONATHAN SCHIRMER and letting him fall, by
the single Defendant WILLIAMS, when it was a two-person job, with Defendant
HUNTER standing by with clipboard in hand;
b. That the conduct herein complained of is substantially more than
ordinary negligence, and amounts to gross negligence and demonstrates a reckless
lack of concern for whether an injury results, all while Plaintiff JONATHAN
SCHIRMER’S wife, Plaintiff DEBBIE SCHIRMER and family members looked
on in horror and shock;
c. Failing to properly load and or unload the stretcher upon which Plaintiff
JONATHAN SCHIRMER was located in a reckless, grossly negligent, willful, and
wonton manner in disregard of Plaintiffs safety in violation of MCL 257.626;
d. Violation of MCL 257.626(b) for operating and or unloading the vehicle
and in a grossly negligent, careless manner likely to endanger persons and or
passengers and Plaintiff JONATHAN SCHIRMER in particular;
-2-
e. Such other acts of negligence and or gross negligence which Plaintiffs
pray leave to Complain of when ascertained.
After a lengthy procedural history, including an appeal to this Court,1 defendant moved for
summary disposition under MCR 2.116(C)(7), arguing that plaintiffs’ claims sounded in medical
malpractice, and thus plaintiffs were required to comply with the various statutory requirements
applicable to medical malpractice claims, which plaintiffs failed to do. After a hearing, the trial
court agreed that plaintiffs’ claims sounded in medical malpractice and accordingly granted
defendants’ motion for summary disposition. This appeal followed.
II. STANDARD OF REVIEW
A trial court’s decision on whether a claim sounds in medical malpractice or ordinary
negligence is reviewed de novo. Bryant v Oakpointe Villa Nursing Ctr, 471 Mich 411, 419; 684
NW2d 864 (2004). Likewise, a trial court’s decision on a motion for summary disposition is
reviewed do novo. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665
(2019). Defendants moved for summary disposition under MCR 2.116(C)(7). “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.” Bryant, 471 Mich at 419.
III. ANALYSIS
On appeal, plaintiffs argue that their claims sound in ordinary negligence. We agree.
The seminal case addressing how to distinguish a claim sounding in medical malpractice
from a claim sounding in ordinary negligence is Bryant. There, our Supreme Court explained that
“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.” Bryant, 471 Mich at 422. If
both questions are answered in the affirmative, then the claim sounds in medical malpractice. Id.
On appeal, plaintiffs concede that the answer to the first question is “yes,” so the only issue is
whether plaintiffs’ claims raise questions of medical judgment beyond the realm of common
knowledge or 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.” Id. at
423. “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
1
That appeal concerned the application of the Emergency Medical Services Act (EMSA) to
plaintiffs’ claims. This Court held that the EMSA was inapplicable because plaintiffs’ alleged
injuries occurred “during transport of the cot, not from” any treatment provided to Jonathan.
Schirmer v Robert, unpublished per curiam opinion of the Court of Appeals, issued July 8, 2021
(Docket No. 347378), p 11.
-3-
explained by experts, a medical malpractice claim is involved.” Id. See also Dorris v Detroit
Osteopathic Hosp Corp, 460 Mich 26, 46; 594 NW2d 455 (1999) (“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.”). This determination is fact-specific, meaning that a court
“must examine the particular factual setting of the plaintiff’s claim” to determine whether it
“implicate[s] medical judgment.” Bryant, 471 Mich at 421 n 9.
Examining the particular factual setting that gave rise to plaintiffs’ claims, we conclude
that plaintiffs’ claims do not implicate medical judgment. Evidence established how the cot was
supposed to be unloaded from the ambulance—the cot was to be pulled out until its safety bar
caught the ambulance’s safety latch, then the cot’s wheels were to be lowered and locked into
place, then the cot’s safety bar was to be released from the safety latch and the cot could be pulled
away from the ambulance. Evidence was also presented about what went wrong while Jonathan
was being unloaded from the ambulance—the safety latch did not catch the cot’s safety bar.
Nothing about this process or what went wrong implicates medical judgment; nothing about
Jonathan’s medical condition affected how he was to be unloaded from the ambulance, nor was
any special level of sophistication required to safely effectuate Jonathan’s move. See id.
(explaining that courts can consider “the medical condition of the plaintiff or the sophistication
required to safely effectuate the move” to determine whether moving a patient implicates medical
judgment).2 Robbins opined that the safety latch did not catch the cot’s safety bar because Hunter
released the latch prematurely, and that, regardless, Jonathan fell because Hunter did not visualize
whether the safety latch caught the cot’s safety bar while Williams was pulling the cot out, and
Williams did not verify with Hunter that the safety latch caught the cot’s safety bar as he continued
pulling out the cot. Lay jurors could evaluate the reasonableness of these actions solely on the
basis of the jurors’ own knowledge and experience.
In reaching the opposite conclusion, the trial court reasoned that the jury could not evaluate
the reasonableness of Hunter’s and Williams’ actions unless someone explained to the jury how
the safety latch and cot function together when unloading a cot from the ambulance. We agree
with the trial court that such testimony will likely be necessary, but disagree that the need for such
testimony means that plaintiffs’ claims sound in medical malpractice. Bryant explained that a case
sounds in medical malpractice if it requires expert testimony pertaining to “questions of medical
judgment,” id. (emphasis added), and testimony about how a safety latch is intended to function
does not implicate medical judgment. After having the safety-latch system explained to them,
jurors could readily evaluate the reasonableness of Hunter’s and Williams’ actions based on the
jurors’ common knowledge and experience.
In arguing against this result, defendants contend:
2
We emphasize that this is a fact-specific inquiry. We do not hold that medical judgment is never
implicated when a patient is being unloaded from an ambulance; we hold only that medical
judgment was not implicated for this plaintiff under these circumstances.
-4-
A layperson is simply not in a position to know, for example, how or where to strap
[Jonathan] to the stretcher, what to do with the IV bag and tubes while [Jonathan]
was being moved, how to position the stretcher and/or the attending personnel to
best lower [Jonathan] from the ambulance, how the stretcher itself operated, or how
to prepare for any medical complications that could arise given [Jonathan’s]
individual medical history, condition, symptoms, and presentation.
This argument, however, fails to “examine the particular factual setting of” plaintiffs’ claims.
Bryant, 471 Mich at 421 n 9. Plaintiffs allege that Williams and Hunter were negligent because
they failed to verify that the safety latch caught the cot’s safety bar while pulling Jonathan out of
the ambulance, and none of the considerations identified by defendants play any role in assessing
the reasonableness of Hunter’s and Williams’ actions in this context. No one testified that the
manner in which Jonathan was strapped to the cot affected how Hunter and Williams unloaded
him from the ambulance or how Hunter and Williams monitored whether the safety latch caught
the cot’s safety bar. Likewise, no one testified that the “IV bags and tubes” made it more difficult
for Hunter and Williams to see whether the cot’s safety bar caught the ambulance’s safety latch or
otherwise affected how they unloaded Jonathan’s cot from the ambulance. The same holds true
for virtually every other consideration identified by defendants. Thus, while certain aspects of
Jonathan’s transportation may raise questions of medical judgment, the particular factual setting
of plaintiffs’ claims raise issues that are wholly within the common knowledge and experience of
laypersons. Accordingly, plaintiffs’ claims sound in ordinary negligence.3
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Colleen A. O’Brien
/s/ Kathleen A. Feeney
3
While not necessarily relevant to our disposition, there seems to be a dispute between the parties
about whether Jonathan was properly strapped to the cot when he was being transported and
unloaded from the ambulance. In their complaint, however, plaintiffs never alleged this fact and
consequently never asserted a claim based on such an allegation. Now, on appeal, while plaintiffs
assert that Jonathan was improperly strapped to the cot, they do not represent that they are asserting
a claim for negligence based on this fact. From this, we can only conclude that plaintiffs are not
asserting a claim for negligence premised on the fact that Jonathan was improperly strapped to the
cot. Accordingly, for clarity, we offer no opinion on whether such a claim would sound in ordinary
negligence or medical malpractice.
-5-