Professional Negligence Law Reporter

A Michigan appellate court held that a claim alleging that a nursing home nurse failed to comply with the facility’s standing order regarding prompt reporting of a patient’s status sounded in medical, not ordinary, negligence.

Samuel Corrado was admitted to Shelby Nursing Center after undergoing surgical placement of a PEG tube. While at the home, he vomited at least twice before suffering severe respiratory distress, which led to his death shortly after. His estate sued the home, among others, alleging the defendant’s nurse failed to comply with the defendant’s standing order directing staff to contact a physician immediately if a patient experiences more than one episode of vomiting. The defendant moved for summary judgment, arguing that the plaintiff’s claim sounded in medical, not ordinary, negligence. The trial court denied the defendant’s motion.

Reversing, the appellate court found that determining whether a claim sounds in ordinary or medical malpractice depends on whether the claim pertains to an action occurring within the course of a professional relationship and whether the claim raises issues of medical judgment beyond the realm of common knowledge and experience. Citing case law regarding the second prong, the court found that where a factfinder cannot assess the reasonableness of a defendant’s conduct without expert testimony on the standard of care, the claim does not constitute one for ordinary negligence. Here, the court said, the plaintiff alleges the nurse acted negligently because he failed to take a specific action in response to Corrado’s repeated vomiting. A lay factfinder would not know that a physician should be informed promptly in this situation, the court said, adding that common knowledge alone was not enough to decide whether the nurse’s actions were reasonable. The fact that introduction of the nursing home’s standing order would be required to determine liability supports the conclusion that the plaintiff’s claim sounds in medical malpractice, the court added.

Thus, the court remanded, concluding that the trial court had erred in holding that the plaintiff’s claim was one for ordinary negligence.

Citation: Corrado v. Rieck, 2020 WL 1968647 (Mich. Ct. App. Apr. 23, 2020).