McLAIN v. LANSING FIRE DEPARTMENT
309 Mich. App. 335
Mich. Ct. App.2015Background
- Tracy McLain suffered a respiratory emergency in Feb 2009; emergency personnel intubated her and transported her to a hospital where she was later declared brain-dead and died. Plaintiff alleges the endotracheal tube was placed in the esophagus, causing injury and death.
- Plaintiff sued Lansing Fire Department, City of Lansing, and paramedic Jeffrey Williams, alleging malpractice and seeking to overcome statutory immunity by pleading gross negligence or willful misconduct.
- Williams testified he followed proper procedure, observed the intubation as appearing successful, continuously monitored McLain en route, and did not place the tube in the esophagus; he suggested dislodgement as a possibility.
- Plaintiff relied primarily on hospital medical progress notes (dictated by an intern who lacked firsthand knowledge) stating the tube was in the esophagus, and on assertions that Williams was not credible.
- Defendants asserted immunity under the Emergency Medical Services Act (EMSA) and Governmental Tort Liability Act (GTLA); the trial court denied GTLA immunity at first but allowed amendment to plead gross negligence; after briefing the court granted summary disposition to defendants under MCR 2.116(C)(7), finding no admissible evidence of gross negligence or willful misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ failure to file an affidavit of meritorious defense required default or summary disposition for plaintiff (MCR 2.116(C)(9); MCR 2.115(B)) | Failure to file the affidavit mandated default / entitlement to relief | When defendants assert governmental immunity under GTLA/EMSA, affidavit-of-merit requirement is inapplicable; court has discretion whether to enter default | Denied: affidavit not required where immunity asserted; trial court properly declined default and denied C(9) relief |
| Whether plaintiff produced admissible evidence raising a question of fact that defendants acted with gross negligence or willful misconduct under EMSA (to abrogate immunity) | Medical progress notes and challenges to Williams’ credibility create factual dispute sufficient to show gross negligence/willful misconduct | Notes are hearsay / from an intern without firsthand knowledge; plaintiff presented no opposing testimony—evidence fails to show gross negligence or intent to harm | Held: No. Medical notes and unsupported credibility attacks are insufficient; defendants entitled to EMSA immunity and summary disposition under C(7) |
Key Cases Cited
- Ardt v. Titan Ins. Co., 233 Mich. App. 685 (1999) (standard of review for summary disposition)
- Tarlea v. Crabtree, 263 Mich. App. 80 (2004) (construe evidence in favor of nonmoving party on C(7))
- Kowalski v. Fiutowski, 247 Mich. App. 156 (2001) (trial court discretion on entering default for failure to file affidavit of meritorious defense)
- Maldonado v. Ford Motor Co., 476 Mich. 372 (2006) (abuse of discretion standard)
- Costa v. Community Emergency Med. Servs., Inc., 475 Mich. 403 (2006) (governmental immunity carriers and affidavit-of-merit inapplicability)
- Jennings v. Southwood, 446 Mich. 125 (1994) (definition of gross negligence and relation of EMSA and GTLA)
- Maiden v. Rozwood, 461 Mich. 109 (1999) (ordinary negligence insufficient to show gross negligence; hearsay inadmissible to create fact question)