Jonathan Schirmer v. James Robert ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JONATHAN SCHIRMER, UNPUBLISHED
July 8, 2021
and
DEBBIE SCHIRMER,
Plaintiffs-Appellants,
v No. 347378
Alpena Circuit Court
JAMES ROBERT, LC No. 17-008120-NO
ROBERT L. HUNTER SR.,
and
NORTH FLIGHT, INC.,
Defendants-Appellees.
Before: LETICA, P.J., and RIORDAN and CAMERON, JJ.
PER CURIAM.
Plaintiffs Jonathan and Debbie Schirmer1 appeal as of right the trial court’s order granting
defendants’ motion for summary disposition on their complaint alleging negligence and gross
negligence against North Flight, Inc., an ambulance service, and its employees, Robert L. Hunter
and James Robert.2 On appeal, plaintiffs argue that the trial court erred in determining that
1
Because the plaintiffs share their last name, we will refer to them by their first names when
discussing them individually.
2
Robert’s actual name is James Robert Williams; to avoid further confusion we will identify him
as he is captioned in the complaint.
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defendants were entitled to immunity under the Emergency Medical Services Act (EMSA), MCL
333.20901 et seq. We reverse and remand.
I. BACKGROUND
On August 2, 2016, MidMichigan Medical Center in Alpena admitted Jonathan to evaluate
his elevated and increasing troponin3 levels and over its “concern for acute NSTEMI”.4 Because
Jonathan’s troponin levels increased, Jonathan was to be transferred to McLaren North in Petoskey
in Emmet County for NSTEMI and a cardiac catheterization. Jonathan desired treatment with his
primary care physician and spent the night waiting for a bed to become available at the Petoskey
hospital.
The next day, a nurse practitioner signed the North Flight EMS transfer authorization form
for ambulance services from the Alpena hospital to the Petoskey hospital. It reflected that
Jonathan’s referring physician chose that destination. In describing Jonathan’s physical condition
that made “transportation by ambulance medically necessary (as opposed to any other means),”
the nurse practitioner identified “NSTEMI” and “↑ troponins.” She added that “[t]ravel by means
other than ambulance (i.e., private vehicle) could endanger [the] patient’s health” given the
possibility of a “MVA” (motor vehicle accident). The nurse practitioner further described
Jonathan’s condition as “[g]uarded.” Nevertheless, Jonathan’s transfer via ambulance was not
considered an emergency because he was stable.
Defendants transported Jonathan on August 3. Hunter was the ambulance’s paramedic;
Robert, the driver and an emergency medical technician (EMT). During this Advanced Life
Support (ALS) transport, Hunter provided cardiac monitoring, continued to administer heparin
intravenously, and checked Jonathan’s vital signs every 30 minutes.
Once the ambulance reached Petoskey, the hospital’s security camera captured what
happened next. After Robert backed the ambulance into the hospital’s entry way, he exited, walked
to the ambulance’s rear, and opened the doors. Hunter then exited and stood off to the side. Robert
began the offloading process by pulling the cot out as Jonathan was strapped to it at his chest,
waist, and lower legs, but not his shoulders. As Robert continued to pull, the safety hook or latch
attached to the ambulance’s floor did not catch the safety bar attached to the cot’s head.5 Without
3
Troponin is a protein found in heart muscle fibers that regulate contractions. When the heart is
injured, troponin is released into the bloodstream.
4
NSTEMI is an abbreviation for non-ST-segment elevation myocardial infarction, more
commonly known as a heart attack.
5
Plaintiffs’ expert opined that Hunter prematurely released the safety and failed to verify
(visualize) the safety hook catching the safety bar. Hunter denied prematurely releasing the safety
bar.
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the hook stopping the cot’s progress, the cot fully came out of the ambulance, knocked Robert to
the ground, and fell sideways onto the pavement with Jonathan strapped to it. Both Hunter and
Robert quickly attended to Jonathan, unstrapped him, and helped him onto his feet and into a
standing position. Jonathan denied being injured.
During the incident, an emergency room nurse appeared and inquired whether Jonathan
needed to be seen in the emergency department before being taken to his hospital room. Jonathan
declined. According to Hunter, Jonathan reported he had not hit the cement hard and had tucked
and rolled in order to protect his body.
Jonathan was able to sit on the cot again. Hunter and Robert then moved the cot to
Jonathan’s pre-arranged hospital room, where they transferred him into his hospital bed.
On November 6, 2017, plaintiffs filed a civil complaint against defendants, alleging that
the incident and their physical and emotional injuries were caused by defendants’ negligence or
gross negligence. In particular, plaintiffs alleged that defendants “were merely transporting
[Jonathan] from one location to another, and not engaged in any application of medicines, surgery,
therapy, or in any treatment of any disease or disorder whatsoever.” Plaintiffs further alleged
“[t]hat there was no professional relationship or medical judgment between the parties . . . and the
issues raised . . . are [within] common knowledge and experience.” The negligence or gross
negligence claim was that Robert unloaded Jonathan alone, even though this task required two
attendants, and Robert lost control of the cot after the safety latch failed to catch. Among other
injuries, Jonathan incurred “[s]erious injuries to his head, neck, shoulder, [and] a sheared off dental
bridge . . . .”
After discovery ended, defendants moved for summary disposition. Defendants asserted
that plaintiffs’ negligence claim was barred in its entirety under the EMSA. In particular, the
individual defendants, who were EMS-licensed personnel, provided services consistent with their
Because Robert could not visualize the safety hook from his position at the foot of the cot,
plaintiffs’ expert opined that Robert failed to look at Hunter for confirmation that the safety hook
caught the safety bar and that he prematurely engaged the system to lower the wheels.
Plaintiffs’ expert further opined that two operators were required to offload a patient-occupied
cot.
According to Hunter and Robert, in the hundreds, if not thousands, of times they had removed a
cot from the ambulance, the safety hook never failed to catch. After this incident, a supervisor
inspected the safety hook and determined it was in working order.
As additional evidence of Hunter and Robert’s negligence or gross negligence, plaintiffs pointed
to their failure to comply with the manual accompanying the cot, which read: “Unloading the cot
from the vehicle while a patient is on the cot requires a minimum of two operators” and “Always
use all restraint straps to secure the patient on the cot. An unrestrained patient may fall from the
cot and be injured.” Hunter testified that two operators were not required to safely offload a
patient-occupied cot unless the patient weighed over 300 pounds, which Jonathan did not. Hunter
further testified that shoulder restraints were not always necessary.
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licensure and training in their medical transport of Jonathan and it was irrelevant that Jonathan was
a non-emergency patient. As to plaintiffs’ gross negligence claim, there was no genuine issue of
material fact as to whether the conduct at issue was grossly negligent because defendants took
various steps to effectuate a safe transfer. Finally, and independent of the EMSA, defendants
asserted that this case was one of medical malpractice and plaintiffs’ failure to comply with
statutory requirements in order to pursue a medical malpractice claim required dismissal.
Plaintiffs responded that the trial court’s earlier order granting plaintiffs’ motion to strike
defendants’ affirmative defenses related to medical malpractice, including the EMSA, dictated the
outcome as this case involved only claims of negligence or gross negligence, not medical
malpractice. In any event, defendants were not entitled to immunity under the EMSA. First, the
EMSA’s immunity “applie[d] only to care rendered in emergency situations and . . . not . . . to
non-emergencies such as the transfers in this case.” Second, defendants did not provide “any
actual treatment” to Jonathan and were not transporting Jonathan from an accident site. Instead,
“in this non-emergency situation,” defendants did not provide “any ‘treatment’ of [] injuries
requiring immediate or prompt medical care.” Defendants’ dropping of the cot was simply
negligence or gross negligence, not medical malpractice.
Defendants replied that the EMSA “provide[d] immunity from negligence of any kind,
whether ordinary negligence or professional negligence, so its applicability is not connected to
whether the claim sounds in medical malpractice.” And, given that the EMSA’s purpose was “to
provide immunity to emergency medical personnel from claims of negligence,” it applied in this
case. Defendants also provided the trial court with a copy of Griffin v Swartz Ambulance Serv,
unpublished opinion per curiam of the Court of Appeals, issued November 29, 2018 (Docket No.
340480), where this Court held that “ ‘treatment’ can be reasonably construed as including the safe
and timely transportation of the patient to the hospital to receive medical care.” Therefore,
defendants were entitled to immunity as to plaintiffs’ negligence claim. Defendants further
maintained that this case involved medical malpractice because “[p]laintiffs’ claims raised
questions of medical judgment [the movement or transportation of a patient] beyond the realm of
common knowledge and experience.” And, contrary to plaintiffs’ assertion that the trial court’s
earlier ruling striking defendants’ affirmative defenses related to medical malpractice decided
these issues, defendants explained that discovery revealed a factual basis for their affirmative
defenses as well as inaccuracies in plaintiffs’ complaint.
After plaintiffs’ counsel informed the trial court of his intention not to attend the hearing,
only defense counsel appeared. The trial court took the matter under advisement, indicating that
it would review Griffin before rendering its decision.
The next day, the trial court issued an opinion and order granting defendants’ motion for
summary disposition based on the EMSA. The trial court rejected plaintiffs’ first argument
because the EMSA did not distinguish emergency from nonemergency situations, and, in fact, the
statutory definition of a patient encompassed both an emergency and a nonemergency patient.
Turning to plaintiffs’ second argument, the trial court looked to Griffin, employed the dictionary
definition of “treatment,” and concluded:
Although defendants may not have been providing “actual medical
services,” they were nonetheless providing treatment within the scope of their
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duties and training while caring for an ambulance patient. This conduct qualifies
as “treatment of a patient” for purposes of EMSA, and is therefore entitled to its
immunity protections.
Lastly, the trial court determined that defendants’ conduct did not amount to gross negligence or
willful misconduct.
This appeal as of right followed.6
II. STANDARD OF REVIEW
We review de novo the trial court’s grant of summary disposition as well as the
applicability of immunity. See Moraccini v Sterling Heights, 296 Mich App 387, 391; 822 NW2d
799 (2012). Summary disposition under MCR 2.116(C)(7) is proper when a claim is barred
because of immunity granted under the law. We consider all documentary evidence in a light most
favorable to the nonmoving party under MCR 2.116(C)(7). Id. “If there is no factual dispute,
whether a plaintiff’s claim is barred under a principle set forth in MCR 2.116(C)(7) is a question
of law for the court to decide.” Id. (quotation marks and citation omitted). A motion for summary
disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim and may be granted
when there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012).
We review questions of statutory interpretation de novo. Edw. C. Levy Co v Marine City
Zoning Bd of Appeals, 293 Mich App 333, 339; 810 NW2d 621 (2011). “The primary goal of
statutory interpretation is to give effect to the intent of the Legislature.” Briggs Tax Serv, LLC v
Detroit Pub Sch, 485 Mich 69, 76; 780 NW2d 753 (2010). The best indicator of the Legislature’s
intent is the statute’s language, which, if clear and unambiguous, we must apply as written. Ford
Motor Co v City of Woodhaven, 475 Mich 425, 438-439; 716 NW2d 247 (2006). Our courts are
further guided by MCL 8.3a, which reads:
All words and phrases shall be construed and understood according to the
common and approved usage of the language; but technical words and phrases, and
such as may have acquired a peculiar and appropriate meaning in the law, shall be
construed and understood according to such peculiar and appropriate meaning.
[Ford Motor Co, 475 Mich at 439.]
And courts “ ‘interpret th[e] words in [a statute in] light of their ordinary meaning and their context
within the statute and read them harmoniously to give effect to the statute as a whole.’ ” Johnson
v Recca, 492 Mich 169, 177; 821 NW2d 520 (2012), quoting People v Peltola, 489 Mich 174, 181;
6
We issued an order holding this case in abeyance based on our Supreme Court’s order scheduling
oral argument on the application for appeal in Griffin v Swartz Ambulance Serv, 504 Mich 968;
933 NW2d 43 (2019). Schirmer v Robert, unpublished order of the Court of Appeals, entered
December 5, 2019, (Docket No. 347378). The abeyance concluded on September 11, 2020, when
the Supreme Court denied leave to appeal. Griffin v Swartz Ambulance Serv, ___ Mich ___; 947
NW2d 826 (2020).
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803 NW2d 140 (2011). “In doing so, courts ‘must give effect to every word, phrase, and clause
in a statute and avoid an interpretation that would render any part of the statute surplusage or
nugatory.’ ” Id., quoting State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146;
644 NW2d 715 (2002).
III. ANALYSIS
Plaintiffs argue that defendants’ dropping of the cot did not constitute “treatment” under
the EMSA. Rather, it was transportation and, thus, plaintiffs were only required to prove ordinary
negligence. We agree.
The EMSA provides immunity for those who satisfy its criteria. MCL 333.20965 states:
(1) Unless an act or omission is the result of gross negligence or willful misconduct,
the acts or omissions of a medical first responder, emergency medical technician,
emergency medical technician specialist, paramedic, medical director of a medical
control authority or his or her designee, or, subject to subsection (5),[7] an individual
acting as a clinical preceptor of a department-approved education program sponsor
while providing services to a patient outside a hospital, in a hospital before
transferring patient care to hospital personnel, or in a clinical setting that are
consistent with the individual’s licensure or additional training required by the
medical control authority including, but not limited to, services described in
subsection (2),[8] or consistent with an approved procedure for that particular
education program do not impose liability in the treatment of a patient on those
individuals or any of the following persons:
* * *
(d) The life support agency or an officer, member of the staff, or other employee of
the life support agency. [MCL 333.20965(1) and (1)(d).]
7
“The limitation on liability granted to a clinical preceptor under subsection (1) applies only to an
act or omission of the clinical preceptor relating directly to a student’s clinical training activity or
responsibility while the clinical preceptor is physically present with the student during the clinical
training activity, and does not apply to an act or omission of the clinical preceptor during that time
that indirectly relates or does not relate to the student’s clinical training activity or responsibility.”
8
“(2) Subsection (1) applies to services consisting of any of the following:
(a) The use of an automated external defibrillator on an individual who is in or is exhibiting
symptoms of cardiac distress.
(b) The administration of an opioid antagonist to an individual who is suffering or is
exhibiting symptoms of an opioid-related overdose.”
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Accordingly, the EMSA shields an EMT, paramedic, and a life support agency from liability where
“the acts or omissions of a[n] . . . [EMT or a] paramedic . . . while providing services to a patient
outside a hospital . . . that are consistent with the individual’s licensure or additional training
required by the medical control authority . . . or [are] consistent with an approved procedure for
that particular education program . . . in the treatment of a patient,” unless the EMT or paramedic’s
acts or omissions are willful misconduct or gross negligence. Id.At issue in this case is whether the dropping of the cot at the conclusion of the ambulance
transport was “in the treatment of a patient.” The EMSA does not define the term “treatment,” but
the word “patient” encompasses “an emergency patient or a nonemergency patient.” MCL
333.20908(6). A nonemergency patient is “an individual who is transported by stretcher, isolette,
cot, or litter but whose physical or mental condition is such that the individual may reasonably be
suspected of not being in imminent danger of loss of life or of significant health impairment.”
MCL 333.20908(1).
The question of what constitutes treatment under the EMSA’s protection from liability was
addressed in Griffin, which the trial court in this case followed in granting defendants’ motion for
summary disposition. In Griffin, the defendant ambulance service was transporting the plaintiff,
who had suffered a dislocated knee in an automobile accident, to the hospital; en route, the
ambulance collided with another vehicle. Griffin, unpub op at 1. The plaintiff sued the defendant,
alleging that its employee, an EMT/medical first responder, who was driving the ambulance, “was
negligent in causing the second accident[.]” Id. at 1-2. The defendant moved for summary
disposition under the EMSA, “which establishes immunity for EMTs and other medical first
responders who provide services in treatment of a patient absent a showing of gross negligence or
willful misconduct.” Id. at 2. As the plaintiff’s evidence, at best, demonstrated that the defendant’s
employee was negligent, the defendant asserted that “it was immune from liability under the
EMSA.” Id. The trial court granted the defendant’s motion and the plaintiff appealed. Id.
In a divided decision, the Griffin majority began by recognizing that the defendant, an
ambulance operation, qualified as a life support agency under MCL 333.20906(1). Id. at 3. The
majority further recognized that “EMTs and ‘medical first responder[s],’ ” were also entitled to
immunity, with the latter term being defined as:
an individual who has met the educational requirements of a department approved
medical first responder course and who is licensed to provide medical first response
life support as part of a medical first response service or as a driver of an ambulance
that provides basic life support services only. Medical first responder does not
include a police officer solely because his or her police vehicle is equipped with an
automated external defibrillator. [Id.]
“Although the definition of medical first responder indicates that an ambulance driver may qualify
for immunity under the EMSA,” this Court still had to decide whether the employee’s operation
of the ambulance qualified “as conduct involving ‘the treatment of a patient’ ” under the EMSA.
Id. Because “treatment” was undefined, the panel majority looked to the dictionary definition to
discern the word’s ordinary meaning. Id. at 4, citing Koontz v Ameritech Servs, 466 Mich 304,
312; 645 NW2d 34 (2002). The majority then defined treatment as:
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a: the act or manner or an instance of treating someone or something:
HANDLING, USAGE b: the techniques or actions
customarily applied in a specified situation. [Id., quoting Merriam-Webster’s
Collegiate Dictionary (11th ed).]
Using this definition, the majority determined that “ ‘treatment’ would include the handling of a
patient in an ambulance or the techniques customarily applied when caring for ambulance patients,
consistent with the training of first responders.” Id. Accordingly, “ ‘treatment’ would not be
limited to actual medical services rendered to patients being transported by ambulance but would
include activities by first responders acting within the scope of their duties and training as first
responders.” Id. The majority concluded that EMSA’s immunity applied to the employee’s
“operation of the ambulance as a motor vehicle . . . where the operation was serving the needs of
[the] plaintiff, a patient seeking immediate medical care.” Id. The “[p]laintiff was being
transported from an accident site to a hospital to receive immediate medical treatment for an
injury.” Id. The transport was “a ‘Priority 2’ run, meaning that they wanted to get to the hospital
as quickly as possible, even though the lights and siren were not activated.” Id. In light of the
circumstances, the employee’s “operation of the ambulance at the time of the second accident
qualifie[d] as conduct involving ‘the treatment of a patient’ ” under the EMSA. Id.Although the Griffin dissent agreed that employing a dictionary definition to define
“treatment” was appropriate, it looked to another dictionary for its definition. Griffin, unpub op at
2 (M.J. KELLY, P.J., dissenting). Under that definition, “ ‘treatment’ consist[ed] of ‘[m]anagement
in the application of remedies; medical or surgical application or service.’ ” Id., quoting Oxford
English Dictionary (2d ed). Because “the record reflect[ed] that at the time of the motor-vehicle
accident the ambulance driver was not undertaking any action to manage [the] plaintiff’s injuries,”
but “was merely transporting [the plaintiff] to the hospital while the paramedic in the patient-
compartment of the ambulance provided treatment,” the dissent concluded that the defendant was
not entitled to immunity under the EMSA. Griffin, unpub op at 2 (M.J. KELLY, P.J., dissenting).
The Griffin plaintiff appealed to the Supreme Court and it scheduled oral argument to
address “whether the operation of the ambulance . . . by the [defendant’s] employee constitutes an
‘act[] . . . in the treatment of a patient’ within the meaning of MCL 333.20965(1).” Griffin v Swartz
Ambulance Serv, 504 Mich 968, 968; 933 NW2d 43 (2019). Following oral argument, and over
two separate dissents, the Supreme Court reconsidered the Griffin plaintiff’s application for leave
to appeal and denied it because it was “not persuaded that the question presented should be
reviewed by this Court.” Griffin v Swartz Ambulance Serv, ___ Mich ___, ___; 947 NW2d 826
(2020).
Justice Zahra, joined by Justice Markman, dissented. Id. at ___; 947 NW2d at 826 (ZAHRA,
J., dissenting). Justice Zahra expressed agreement with the plaintiff’s position that immunity under
the EMSA did “not apply to these circumstances because the second accident occurred during
transportation and not while [the] plaintiff was receiving any kind of medical treatment.” Id. at
___; 947 NW2d at 826-827. Recognizing that resorting to dictionary definitions was permissible
when a statutory term was left undefined, the dissent concluded it was unhelpful in resolving the
question “as some [definitions] support the notion that ‘treatment,’ in this context, includes
‘transportation,’ while others support the opposite conclusion.” Id. at ___; 947 NW2d at 828.
Rather, viewing the EMSA as a whole, Justice Zahra’s dissent observed that it “uses the words
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‘treatment’ and ‘transport’ in close conjunction, yet clearly denoting separate and distinct
concepts.” Id. For example,
[a]n “ambulance operation,” as defined by MCL 333.20902(5), “means a
person licensed under this part to provide emergency medical services and patient
transport, for profit or otherwise.” “Emergency medical services” are defined
under MCL 333.20904(4) as “the emergency medical services personnel,
ambulances, nontransport prehospital life support vehicles, aircraft transport
vehicles, medical first response vehicles, and equipment required for transport or
treatment of an individual requiring medical first response life support, basic life
support, limited advanced life support, or advanced life support.” In this way, the
EMSA uses the word “treatment” and then, separately, uses the word “transport”
to describe different functions of equipment used to provide varying degrees of life
support. Thus, as far as “emergency medical services” under MCL 333.20902(5)
are concerned, “treatment” is not synonymous with “transport”—even if neither
term is defined by statute. Turning back to the statutory definition provided for
“ambulance operations,” one should note that “emergency medical services”—
which includes the equipment used for treatment and transport of individuals—is
separate from “patient transport.” [Id. at ___; 947 NW2d at 828-829 (footnotes
omitted).]
Moreover, Justice Zahra’s dissent noted that MCL 333.20969 also distinguishes treatment
from transportation:
This part and the rules promulgated under this part do not authorize medical
treatment for or transportation to a hospital of an individual who objects to the
treatment or transportation. However, if emergency medical services personnel,
exercising professional judgment, determine that the individual’s condition makes
the individual incapable of competently objecting to treatment or transportation,
emergency medical services may provide treatment or transportation despite the
individual’s objection unless the objection is expressly based on the individual’s
religious beliefs. [Id. at ___; 947 NW2d at 829 (footnotes omitted).]
This “suggests that ‘emergency medical services,’ which include[s] ‘ambulances,’ can be used in
certain circumstances for either ‘treatment or transportation.’ ” Id. (footnote omitted). The dissent
expressed its concern that this Court had “improperly construed the EMSA” and would have
granted the application “to explore these aspects of the EMSA . . . .” Id. at ___; 947 NW2d at 830.
Justice Viviano separately dissented and would have “grant[ed] leave to consider whether
the term ‘treatment’ [as used in MCL 333.20965(1) was] ambiguous.” Id. at ___; 947 NW2d at
830 (VIVIANO, J., dissenting). Justice Viviano agreed with Justice Zahra that the repeated, separate
use of “transport” and “treatment,” “indicates that the terms ha[d] two separate meanings, and that
‘treatment’ does not include ‘transport.’ ” Id. at ___; 947 NW2d at 830-831. Justice Viviano
would have granted leave, in part, to address whether the dictionary definitions applied by this
Court created an ambiguity regarding the meaning of treatment under the EMSA. Id. at ___; 947
NW2d at 830-833.
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The Griffin plaintiff later filed a motion for reconsideration, which the Supreme Court
unanimously denied. Griffin v Swartz Ambulance, Inc, 506 Mich 950; 950 NW2d 49 (2020).
In a recent 2-1 decision, however, this Court agreed with Justice Zahra’s Griffin dissent
and “conclude[d] that the mere transportation of a patient is not sufficient to meet the requirement
that the act or omission causing the injury occur ‘in the treatment of a patient’ under MCL
333.20965(1).” Bartalsky v Osborn, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket No.
349317); slip op at 1. In Bartalsky, the defendants, two EMTs, transported the plaintiff to a
hospital “for evaluation of a nonemergency condition.” Id. at ___; slip op at 2. The hospital
evaluated the plaintiff and discharged him. Id. The defendants were taking the plaintiff out of the
hospital on a stretcher when its wheels “ ‘hit some debris,’ causing the stretcher to ‘tip over’ and
[the] plaintiff’s left shoulder and hip to strike the pavement.” Id. The plaintiff further alleged that
the defendants’ negligence continued and that they enabled a second fall. Id. The plaintiff suffered
a broken hip and sued the defendants, “alleging both negligence and professional malpractice, but
not gross negligence.” Id. The defendants, including the life-support agency they worked for,
moved for summary disposition under the EMSA, which the trial court granted. Id.On appeal, this Court explained that “the key question . . . is whether ‘transportation’
alone—emergency or otherwise—qualifies for immunity under MCL 333.20965(1) of the
EMSA.” Id. at ___; slip op at 4. This Court “agree[d] with the parties that [the] defendants were
transporting [the] plaintiff within the meaning of the EMSA . . . .” Id. at ___; slip op at 6. And
this Court further agreed that the EMSA “uses the terms ‘treatment’ and ‘transport’ to mean
different activities,” holding:
The activities could occur at the same time, e.g., a patient could be
transported in an ambulance while being provided medical treatment, but the
activities remain conceptually separate. Under the EMSA, a covered individual
must be, among other things, engaged ‘in the treatment of a patient’ for the
immunity provision to apply. MCL 333.20965(1). Therefore, because [the]
plaintiff’s ordinary-negligence and medical-malpractice claims are premised on
defendants’ acts or omissions involved with his transportation in the hospital
parking lot and not any treatment provided to him, the immunity for negligent acts
or omissions under MCL 333.20965(1) does not apply to those claims.
* * *
With the EMSA, the Legislature provided immunity to EMTs and other
covered persons and entities for certain acts or omissions that do not rise to the level
of gross negligence or willful misconduct. But to qualify for immunity, a defendant
must show, among other things, that the act or omission was taken “in the treatment
of a patient.” MCL 333.20965(1). This requirement is fatal to defendants’ claim
of immunity here because, as the record makes clear, the EMTs were merely
transporting plaintiff in a stretcher across a hospital parking lot. While defendants
argue that public policy supports a broader meaning of the term “treatment,” the
EMSA treats the term “transport” separate and distinct from the term “treatment.”
It is for the Legislature, not this Court, to decide whether defendants have the better
public-policy argument. [Id. at ___; slip op at 7.]
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We agree with Bartalsky, and are bound to follow it under MCR 7.215(J)(1). Although
Hunter provided treatment to Jonathan during the ambulance transport, plaintiffs allege that
Jonathan was injured during transport on the cot, not from the treatment Hunter provided. Because
treatment and transport have distinct meanings under the EMSA, defendants are not shielded from
liability.9
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Anica Letica
/s/ Michael J. Riordan
/s/ Thomas C. Cameron
9
We decline to address defendants’ alternative argument for summary disposition as the trial court
did not reach it. On remand, the court remains free to consider this alternative ground.
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