Opinion
SC: 163058 COA: 351649
03-25-2022
Vicki SWANZY, Personal Representative of the Estate of John Swanzy, Plaintiff-Appellee, v. Edward J. KRYSHAK, M.D., Defendant, and Spectrum Health Primary Care Partners, d/b/a Spectrum Health Medical Group, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the March 11, 2021 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Viviano, J. (dissenting).
I respectfully dissent from the Court's decision to deny leave to appeal. This case presents a jurisprudentially significant question regarding when a claim for vicarious liability against a professional corporation sounds in medical malpractice. Because I question the Court of Appeals’ analysis and conclusion, I would hear oral argument on the application for leave to appeal.
The decedent in this case was treated for diabetes by Dr. Edward J. Kryshak, who was employed by defendant Spectrum Health Primary Care Partners (defendant). The decedent's wife had a question about the decedent's insulin and called Dr. Kryshak's office to ask if she could use an old vial of insulin that she had at home. She alleges that she spoke with Robin Zamarron, a certified but unlicensed medical assistant, who told her she could use the insulin and directed her as to how much to give him. The amount Ms. Zamarron told the decedent's wife was five times the amount that should have been administered. The decedent's wife administered the amount she had been directed to administer, which caused the decedent to fall into a coma and die.
The decedent's wife, as personal representative of the decedent's estate, sued Dr. Kryshak and defendant. Count 1 of her complaint contained two parts: (1) that defendant was vicariously liable for Ms. Zamarron's negligence in giving incorrect information about the insulin substitution and dosage, and (2) that defendant was directly liable for its negligent training and supervision of Ms. Zamarron. The trial court granted partial summary disposition to plaintiff, ruling that Count 1 sounds in ordinary negligence, not medical malpractice. The Court of Appeals affirmed, holding that a claim of medical malpractice could not accrue against defendant for its direct negligence in failing to train Ms. Zamarron or its vicarious liability for Ms. Zamarron's allegedly negligent actions. Swanzy Estate v. Kryshak , 336 Mich.App. 370, 970 N.W.2d 407 (2021).
Dr. Kryshak is not a party to this appeal.
I question the Court of Appeals’ analysis and conclusion with respect to vicarious liability for Ms. Zamarron's allegedly negligent actions. A medical malpractice action cannot accrue against an individual or entity who is incapable of medical malpractice. Adkins v. Annapolis Hosp. , 420 Mich. 87, 95, 360 N.W.2d 150 (1984). Thus, we have previously recognized that "[t]he first issue in any purported medical malpractice case concerns whether it is being brought against someone who, or an entity that, is capable of malpractice." Bryant v. Oakpointe Villa Nursing Ctr., Inc. , 471 Mich. 411, 420, 684 N.W.2d 864 (2004). When determining whether a claim sounds in ordinary negligence or medical malpractice, Michigan courts ask two questions: "(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." Id. at 422, 684 N.W.2d 864. If the answer to both questions is yes, the claim sounds in medical malpractice and is subject to the procedural and substantive requirements that govern such claims. Id.
At issue in this appeal is whether defendant is capable of malpractice, the answer to which turns on the first Bryant prong—"whether the claim pertains to an action that occurred within the course of a professional relationship[.]" Id. at 422, 684 N.W.2d 864. We have previously explained the professional relationship test as follows:
A professional relationship sufficient to support a claim of medical malpractice exists in those cases in which a licensed health care professional, licensed health care facility, or the agents or employees of a licensed health care facility, were subject to a contractual duty that required that professional, that facility, or the agents or employees of that facility, to render professional health care services to the plaintiff. [ Id. ]
MCL 600.5838a is the accrual statute establishing when a medical malpractice cause of action accrues. Only providers and facilities covered by MCL 600.5838a can meet the professional relationship prong of the Bryant test. See Potter v. McLeary , 484 Mich. 397, 415, 774 N.W.2d 1 (2009). MCL 600.5838a(1) states, in relevant part:
For purposes of this act, a claim based on the medical malpractice of a person or entity who is or who holds himself or herself out to be a licensed health care professional, licensed health facility or agency, or an employee or agent of a licensed health facility or agency who is engaging in or otherwise assisting in medical care and treatment, whether or not the licensed health care professional, licensed health facility or agency, or their employee or agent is engaged in the practice of the health profession in a
sole proprietorship, partnership, professional corporation, or other business entity, accrues at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.
It is undisputed that defendant does not meet the definition of "licensed health care facility." It also is not itself a "licensed health care professional." However, that does not end the inquiry. The question in this case is whether defendant may be vicariously liable for Ms. Zamarron's actions because of her alleged status as an employee who was delegated professional acts, tasks, or functions under MCL 333.16215(1). In Potter we addressed when a plaintiff must provide a notice of intent (NOI) to a professional corporation (PC) prior to commencing a medical malpractice action predicated on the PC's vicarious liability for one of its providers. We explained that "[w]hen a PC renders professional services, it is rendering those professional services through the licensed health care pro-vider [sic] and the two are treated as though they are one entity." Potter , 484 Mich. at 418, 774 N.W.2d 1. Therefore, "a plaintiff must provide a timely NOI to a PC before commencing a medical malpractice action when the claims alleged against the PC are predicated on its vicarious liability for a licensed health care provider who is rendering professional services." Id. at 425, 774 N.W.2d 1. In a footnote, we stated, "Conversely, when a claim asserted against a PC involves the actions of an employee or agent who is unlicensed or not rendering professional services as delineated in MCL 450.225, the NOI requirement would be unnecessary, because such a claim would sound in ordinary negligence rather than medical malpractice." Id. at 403, 774 N.W.2d 1 n.4.
MCL 450.225 is now found at MCL 450.1285 and states, in relevant part:
(1) A professional corporation shall not provide professional services in this state except through its officers, employees, and agents who are duly licensed or otherwise legally authorized to provide the professional services in this state. The term "employee" does not include a secretary, bookkeeper, technician, or other assistant who is not usually and ordinarily considered by custom and practice to be providing a professional service to the public for which a license or other legal authorization is required. [Emphasis added.]
MCL 333.16215(1) permits a medical licensee to "delegate to a licensed or unlicensed individual who is otherwise qualified by education, training, or experience the performance of selected acts, tasks, or functions where the acts, tasks, or functions fall within the scope of practice of the licensee's profession and will be performed under the licensee's supervision." Thus, it appears that a claim against a PC involving the actions of an employee who is unlicensed may sound in medical malpractice if the acts, tasks, or functions of the employee at issue were delegated to the employee by a medical licensee under MCL 333.16215(1).
In the present case, there are questions of fact regarding whether Dr. Kryshak delegated any acts, tasks, or functions to Ms. Zamarron and what the extent of such delegation may have been. As a result, it appears that there remains a genuine question whether the first part of Count 1 of plaintiff's complaint sounds in medical malpractice and not ordinary negligence.
The Court of Appeals in this case focused only on Ms. Zamarron's status as an unlicensed medical assistant. It provided no analysis of MCL 450.1285 or MCL 333.16215(1) ; in other words, it did not consider whether Ms. Zamarron was rendering professional services in a manner that would satisfy the first prong of Bryant . Indeed, when the Court of Appeals quoted footnote 4 of Potter , it only emphasized the phrase "who is unlicensed" and omitted the reference to MCL 450.225 (again, now found at MCL 450.1285 ). Swanzy Estate , 336 Mich.App. at 384-385, 970 N.W.2d 407 ("In addition, our Supreme Court expressly stated in Potter that ‘when a claim asserted against a [professional corporation] involves the actions of an employee or agent who is unlicensed or not rendering professional services[,] ... such a claim would sound in ordinary negligence....’ "), quoting Potter , 484 Mich. at 403 n.4, 774 N.W.2d 1 (emphasis and alterations in Swanzy ).
The Court of Appeals also relied on three other cases that, combined with Potter , it believed "stand for the proposition that an institutional defendant is only capable of being held vicariously liable for the professional malpractice of its employees who are licensed healthcare providers under MCL 600.5838a(1)(b)." Swanzy Estate , 336 Mich.App. at 385, 970 N.W.2d 407. Those cases were Kuznar v. Raksha Corp. , 481 Mich. 169, 750 N.W.2d 121 (2008) ; LaFave v. Alliance Healthcare Servs., Inc. , 331 Mich.App. 726, 954 N.W.2d 566 (2020) ; and Sabbagh v. Hamilton Psychological Servs., PLC , 329 Mich.App. 324, 941 N.W.2d 685 (2019). But all three of those cases appear to be distinguishable. None of them involved a claim against an entity that was based on the conduct of one of its unlicensed employees who was acting under authority delegated to them by a professional licensee.
The Court of Appeals also rejected defendant's suggestion that it follow Flie Estate v. Oakwood Healthcare Inc. , unpublished per curiam opinion of the Court of Appeals, issued December 12, 2017 (Docket No. 333389), 2017 WL 6345758. The Court in Flie disagreed that footnote 4 of Potter stood for the proposition "that any cause of action against a PC based on the acts of the PC's unlicensed employee necessarily sounds in ordinary negligence." Flie , unpub. op. at 6. Flie observed that MCL 450.1285(1) "expressly recognizes that both licensed and unlicensed employees can render professional services." Id. The Court of Appeals in this case declined to apply Flie , finding it to be unpersuasive. It believed that the plaintiff in Flie "sought to hold the professional corporation vicariously liable for actions of a physician it employed, not for the actions of the unlicensed medical assistant" and that it was thus "not tasked with evaluating whether a professional corporation could be held vicariously liable based solely upon its status as the employer of an employee who was not a licensed health care professional under MCL 600.5838a(1)(b)." Swanzy , 336 Mich.App. at 386-387, 970 N.W.2d 407.
Although Flie was unpublished, I nevertheless question whether the Court of Appeals in this case was correct to reject its analysis. If the services being provided would render an entity liable for medical malpractice if they were being provided directly by a licensed individual, and those same services are being provided by an unlicensed individual under validly delegated authority on behalf of the licensed individual, that would seemingly satisfy the professional-relationship prong of Bryant . If so, the claim could sound in medical malpractice. Additionally, as noted, the question in this case is not whether defendant can be held vicariously liable based solely on its status as the employer of Ms. Zamarron; the question is whether it may be liable based on Ms. Zamarron's status as an employee who was delegated professional acts, tasks, or functions under MCL 333.16215(1).
For these reasons, I think the Court of Appeals may have erred in holding that defendant's vicarious liability for Zamarron's negligent actions cannot sound in medical malpractice. I respectfully dissent from the Court's decision to deny leave to appeal and instead would hear oral arguments on defendant's application.