*1 JENNINGS SOUTHWOOD 7, 1992, Rapids. at Grand Docket No. 119614. Submitted October 16, 1993, at 9:05 a.m. . Decided March Cynthia Jennings, of the estate of K. Dean S. as conservator Rasmussen, incapacitated person, brought an action an Southwood, against Boyd, Bill Berrien Circuit Court Richard J. Jr., Daniels, Township Township, and Lake Ambu- Dan Lake Rescue, seeking damages resulting from the failure lance and emergency personnel transport Cynthia medical to to a hospital responding experiencing after to a call she day Cynthia has remained in a coma since the diabetic seizure. plaintiffs pleadings of the incident. The asserted gross negligence, thereby sub- defendants’ actions amounted excep- jecting liability pursuant them to to the emergency immunity afforded under the medical tion to the however, present any evi- act. The did not services part Cynthia or her dence of occurring alleged negligence, but mother before the defendants’ argued sufficiently reckless that the defendants’ conduct was so as to demonstrate a substantial lack of concern for whether court, Hammond, J., injury might T. have resulted. The John jury’s judgments for the defendants consistent with the entered appealed. The verdict. Appeals The Court of held: attempting concept 1. The court erred in to illustrate the jury by citing analogous examples to the error, however, require does not criminal misconduct. The with sub- reversal because the failure to reverse is consistent stantial immunity defendants 2. To avoid the afforded the individual act, pursuant under the 333.20737; gross negligence exception of the 14.15(20965), 14.15(20737), plain- now MCL References 2d, 716-819; Hospitals Asylums Appeal and Am Jur And Error §§ 15; Negligence 25.§ § hospi- Liability injury allegedly by actitivies of for or death caused team.” 64 ALR4th 1200. tal "rescue App 198 prove required their tiff was Cynt- on occurred after some her mother. hia or disposition granting summary in favor 3. The court erred *2 concluding incorrectly municipal after of the defendants vicariously they for the could not be held liable required, emergency personnel. is not of the Reversal however, gross negligence as a matter because there was no result, therefore, law, and, right court reached the albeit the wrong for the reason. Affirmed. J., only, concurring the Neff, in the result stated that precedent should resolve the issue whether gross negligence negligence requirement for survived a claim Sterling adoption comparative negligence in Placek v (1979); neligence Heights, 405 Mich 638 comparative negligence requirement con- no sense in a makes service, text; emergency that in the context of medical provided that makes sense is 3.996(107)(2)(c): 691.1407(2)(c); by conduct so reckless MCL MSA lack of concern for whether an as to demonstrate a substantial results; Appeals injury were the Court of not bound and 1990-6, 1991- stare decisis and Administrative Orders Nos. 11, 1992-8, plaintiff properly pleaded and it should find that the gross negligence, the existence of that the trial court’s instruc- harmless, not and that failure to reverse the tional error was would be inconsistent with substantial Immunity Emergency — —

Governmental Medical Personnel Negligence. Gross immunity emergency medical To avoid the individual afforded personnel plaintiff under the a the defendant’s act or omission amounted must establish that misconduct; or wilful to establish negligence, prove that the must defen- after on dant’s occurred some (MCL 333.20737; 14.15[20737], 14.15[20965]). now Burhans, T. John plaintiff. for the Cummings, McClorey, Acho, Davis & P.C. (by Howe), L. Marcia Southwood, for Richard J. Bill Jr., Boyd, and Dan Daniels. Opinion op the Court P.J.,

Before: Griffin, Corrigan, and Neff and JJ. involving In this lawsuit issues of Per Curiam.

governmental immunity, plaintiff appeals as of right judgments entered favor of defendants. affirm. We

This case arose as a result of defendants’ failure transport thirteen-year-old Cynthia K. Rasmus- to sen to wood, gency hospital.

a Defendants Richard J. South- Boyd, Jr., emer- Bill and Dan Daniels are personnel on medical who November experi- responded Cynthia to a call that encing a seizure. At trial there was con- diabetic flicting regarding testimony whether these defen- Cynthia’s dants or sion undisputed, mother made the ultimate deci- transport Cynthia hospital. not to It is Cynthia

however, that in a has been day coma since the of the incident. To

Plaintiff raises two issues for our review. *3 properly appeal, necessary it to resolve this abrogate plaintiffs first. review defendants’ individual second issue To immunity under the emer- gency plaintiff medical services act was (emsa), amounting required to establish act or omission "gross negligence to or wilful misconduct.” MCL 14.15(20737), 333.20737; now see 14.15(20965). did not Plaintiff excep- plead Rather, misconduct. wilful plaintiff immunity asserted was tion to negligence. appeal, plaintiff argues for On that was error attempt concept trial court to to illustrate the citing analogous jury by of Although examples of criminal misconduct. we are regard, persuaded in that the trial court erred this persuaded plaintiff to are not is entitled we reversal. panel recently ob-

As another this Court App 198 Opinion op the Court proven have served, negligence law aspects few this state than to the courts of frustrating more "gross negligence.” of the term the construction Service, Medical Emergency Community Pavlov v Inc, 711, 718; 491 NW2d 874 App Nonetheless, the com- purposes for emsa, in gross negligence adopted mon-law definition Cursan, 311, 319; 196 NW 398 Gibbard to avoid the Accordingly, has been retained. pursuant under the emsa to immunity afforded exception of emsa, that defendants’ required prove was occurred after some Pav- or her mother. Cynthia lov, Jackson, supra; Abraham v (1991).1 This has not light in a most favorable to done. Viewed allegations plaintiff’s complaint allege solely proper inquiry that defendants failed to conduct a experi- to determine whether Cynthia actually encing prece- diabetic seizure. No averment negligence appears plaintiff’s complaint: dent guilty 17. were [D]efendants failing transport plaintiff, Cynthia K. Ras- appropriate mussen to the services of health care persons approximately on November 1986 at p.m. following 7:22 for the reasons: (a) Cynthia K. emotionally Rasmussen was dis- traught.

(b) Cynthia suffering K. Rasmussen was from activity. seizure (c) Cynthia exhibiting K. Rasmussen was vital signs hypoglycemia. indicative of *4 (d) appropriate Defendants failed to consult an physician pursuant protocol licensed to the Pavlov, 720, supra, p controlling prece As noted in Abraham is 1990-6, under No. 436 Mich lxxxiv. dent Administrative Order op Opinion the Court County Emergency Berrien Medical Control Au- emergencies. thority protocol for diabetic (e) permission Defendants failed to obtain from a physician purposes of declar- duly licensed for the ing health code. pursuant nonemergency this to be a (f) An additional failure of these defendants adequate they proper that history Cynthia failed to obtain a K. Rasmussen. guilty

20. That defendants were regard to the care and treatment ren- plaintiff, Cynthia dered to K. Rasmussen on No- approximately vember spite Cynthia 1986 at 12:30 a.m. de- prior knowledge defendants’ K. Rasmussen’s diabetic condition and the upon symptoms exhibited her examination did containing glucose not administer an iv solution offset the dangerous glucose extremely levels of plaintiff, Cynthia K. Rasmussen’s blood. Similarly, appeal, plaintiff his brief on does not direct this Court to any record evidence of precedent negligence. argues Plaintiff instead that there was that defendants’ conduct testimony reckless so as to sufficiently demonstrate sub- stantial lack of concern for whether an injury above, however, might result. As noted not this is appropriate for avoiding immunity test under the emsa.

It is well settled that instructional error compels reversal where the failure to do so would be Reisman v inconsistent with substantial Univ, Regents State Wayne injustice Such is not in this present case for the reason that prove gross negligence has failed to or as Gibbard, supra. defined by plaintiff’s view of our resolution second issue, plaintiff’s merits only cursory first issue *5 App

718 713 198 Mich by Neff, J. Concurrence the trial court Plaintiff contends discussion. disposition summary granting in favor in erred Township municipal and defendants, Lake agree, Township Rescue. We Ambulance Lake required. again reversal is not conclude that but Supreme of the the recent decision Under 132, 147-148; Detroit, 437 Mich Malcolm v East (1991), conclusion the trial court’s 468 NW2d 479 that municipal entitled to defendants were they could of law because as a matter vicariously the former liable under not be held negligence their statute for the personnel However, there because was incorrect. law, vicari- as a matter was no longer municipality liability is no at ous issue. An order of disposition summary not need right reaches the where the trial court be reversed wrong Mutual reason. See State result but for the App 521, Russell, Ins Co v (1990). 785 NW2d

Affirmed. only. (concurring). I concur in the result J.

Neff, urge separately Court to I our write resolve the issue whether requirement claim survived of a Michigan comparative negli- adoption Sterling Heights, 638; in Placek v 275 NW2d 511 panel recently determined that

A of this Court requirement should con- the tinue to be applied. Community Emer- Pavlov v gency Service, Inc, 711, 718; Medical the trial a case which disposition granted summary to the defen- court dants on the basis of emergency immunity under the former 333.20701 et 14.15(20701) opin- seq.; seq., majority et by Neff, J. context, ion noted in its historical the con- cept "gross negligence” plain- was intended as a tiffs doctrine to be used to avoid the harsh bar of contributory negligence. The Pavlov set majority forth the definition of from Gib- 196 NW 398 Cursan, bard v (1923): *6 "When will of a defendant ex- negligence cuse contributory plaintiff? of a In a defendant, knows, case where the the ought, by who or care, know, ordinary exercise of of the his subse- quent negligence plaintiff does injury. . . . gross "The theory of is that the ante- plaintiff put cedent of only him in a

position danger and was therefore the remote cause of injury, the while the subsequently intervening negligence of the defendant was the proximate tions [Pavlov, supra, pp 718-719; cause.” cita- omitted, emphasis original.] The Pavlov also majority stated: unaltered,

The Gibbard definition has remained despite negligence 638; adoption Michigan comparative (Placek Sterling Heights, 405 Mich [1979]) 275 NW2d 511 and the dissatisfaction Gibbard, with its supra misuse noted even in at See, e.g., Papajesk Co, 321. Chesapeake & O R [v 550, App 555; 14 Mich (1968)]. 166 NW2d 46 Our Supreme opportu- Court specifically declined an nity phrase to redefine the in Burnett City of [v Adrian, 448, 455-456; 414 Mich 326 810 NW2d (1982)], stating preferred it to wait for a case developed a "fully factual record.” Id. at 456. [Pavlov, supra, p 719.] concluded, light The Pavlov majority substantive law regarding gross negli- issue of gence, that the trial court in applying did not err App 713 Mich 198

720 by Neff, J. negligence. the Gibbard/Burnett further 720. The Pavlov majority Pavlov, supra, p stated: requires plainly law [C]ase claim, if the correctly must allege properly "In order to be addressed. plead defendants’ negligence, plaintiffs must Detroit, 181 Mallory v subsequent negligence.” (1989), 121, 125; another 449 NW2d App 14.15(20737). construing MSÁ case Detroit, East in Malcolm v panel The App applied the NW2d gross negligence claim to be same rule: "[F]or neg- allege that the defendant’s it must actionable subsequent to some ligent conduct occurred gent conduct plaintiff.” The Malcolm decision on reversed the address the definition grounds, but did not other "gross failed to negligence” because 132, 147-148; 468 cross-appeal.

raise on Jackson, See also Abraham [v (1991)]. 473 NW2d [Pavlov, supra, p 720.] *7 that the trial The Pavlov concluded majority plaintiff’s gross the correctly court dismissed request plaintiff’s and declined the claim set gross negligence it the definition of ignore that Malcolm, Mallory, and Abraham and in- in out 691.1407(2) found in MCL apply stead the standard 3.996(107)(2)(c), that (c); provides which MSA as means "conduct so reckless "gross negligence” lack of concern for to demonstrate a substantial Pavlov, supra, pp 720- injury results.” whether 721. view, require- negligence my makes no simply

ment of a claim I agree context. comparative sense in a Kelly’s J. Judge with Michael wholeheartedly 721 by Neff, J. concurring opinion in Pavlov in the context service, medical emergency only gross any makes sense is that 3.996(107X2) 691.1407(2)(c); provided by MCL Kelly (c). Pavlov, 723. supra, p Judge stated: opt gross I negligence [pro- for that definition of (107X2) 691.1407(2)(c); vided for in MCL MSA 3.996 (c)] because that is the definition that makes emergency sense To use a tempt the context of medical service. term, fashionable is ludicrous to at- portray suffering human and trauma by inflicted negligence the forces of society nature or as

in order to establish as by sig- defined naled case law. The Court has aright its intention to set this scheme Adrian, City 448; Burnette v 414 Mich 326 [sic] (1982), Detroit, NW2d Mich and Malcolm v East 132; (1991), 468 NW2d 479 I but do not anticipate that supply this the case that will factual by basis for a new "best effort” the Su- preme Court. . . . gratified I Legislature would be to see the insert government the negligence tort liability gross act definition of present in the version of seq.; MCL 333.20901 et 14.15(20901) seq. agree et I pre-Placek Sterling Heights, NW2d 511 negligence case law definitions of [Pavlov, supra, are pp obsolete. 723- 724.]

If I were not bound stare decisis and by Admin- 1990-6, istrative lxxxiv, Order No. as by 1991-11, extended Administrative Order No. cxliv, as extended Administrative 1992-8, lii, Order No. I would find that properly pleaded the existence negligence, the trial court’s instructional er- harmless, ror was not and that our failure reverse this case would be incon- *8 App 198 by Neff, J. reverse I would substantial with

sistent jury remand verdict and entered I new trial. believe court for a to the trial this case developed fully factual case, its this with Supreme proper our for record, vehicle is dispense outdated with the obsolete Court in Gibbard. set forth definition subsequent or the notion of I note that also has definition been under the Gibbard chance” doctrine. "last clear to as the referred supra, pp (Blair Moody, Jr., J., Burnett, 461-462 pp concurring); supra, 319, 322. In Pe Gibbard, Co, v Grand Trunk W R trove Supreme determined Court our NW2d compara adoption light of this state’s negligence, clear on the "last an instruction tive holding, error. In so doctrine constituted chance” adopted Supreme as its own the reason Court Appeals ing v Grand Callesen of the Court App 252, 259-263; 437 Co, 175 Mich Trunk W R Shepherd Judge Callesen, adopt the last clear "We the view wrote: adop abolished with doctrine has been chance negligence system pure comparative tion of a Michigan.” p clear Id., 261. The demise of the last signals per and Petrove doctrine Caliesen chance necessary definition of demise of the Gibbard negligence. that our I is time believe dispenses formally the Gib gross negligence, in es which bard way referring merely a different sence Only then will clear chance” doctrine. "last replaced vestiges contributory be last comparative negligence pure by the form of provides adopted noted, this case in Placek. As appropriate which to do so. vehicle with