Professional Negligence Law Reporter

A Michigan appellate court held that a claim alleging that a nursing home was liable for its employee’s failure to cut a resident’s food into bite-sized pieces, resulting in the resident’s choking death, constituted a claim for ordinary, not medical, negligence.

Elissabeth Halabicky, who was nonverbal and suffered from cerebral palsy, was admitted to Suncrest Nursing Home for long-term care. At the time of the admission, her parents discussed the need to cut her food into bite-sized pieces and informed staff that Halabicky sometimes swallowed her food without chewing. That night, as Halabicky ate her first meal at the home, she choked. EMS used forceps to remove a one-and-a-half-inch piece of sausage from Halabicky’s throat. She died later that night.

Her father sued the nursing home and others, alleging negligence and gross negligence. The plaintiff claimed that despite knowing that Halabicky required her food to be cut into bite-sized pieces, the defendants negligently provided food that was not bite sized.

The defense moved for summary judgment, arguing that the plaintiff’s claims sounded in medical malpractice, not ordinary negligence. The trial court granted the motion, agreeing that the plaintiff’s claims sounded in medical malpractice and concluding that the plaintiff had failed to comply with the procedural requirements attached to malpractice claims.

Reversing in part, the appellate court found that deciding whether a piece of food is bite sized is within an average person’s common knowledge and experience and does not require any special medical knowledge. The court also found that resolving this issue does not involve a decision on whether Halabicky’s conditions necessitated that her food be bite sized, a determination that had already been made before her admission to the home. Thus, the court held that this claim sounded in ordinary negligence.

The court nevertheless affirmed the lower court’s dismissal of the remaining claims, holding that negligent supervision and failure to timely call 911 implicate medical judgment. Consideration of those claims involves a determination of Halabicky’s medical needs and condition, the court said, including whether the defendants’ actions in responding to the emergency were reasonable. Thus, the court concluded, a jury could evaluate these claims only after a medical expert explained the proper standard of care.

Citation: Halabicky v. Lapeer Cty. Med. Care, 2021 WL 2493962 (Mich. Ct. App. June 17, 2021).

Plaintiff counsel: AAJ member Leon Walsh Jr., Okemos, Mich.; and Mark Granzotto, Royal Oak, Mich.