MEDICAL MALPRACTICE STATUTES ARE A PAIN IN

THE BEDSORE WHEN INJURIES ARE CAUSED BY

ORDINARY NEGLIGENCE

By Catherine J. Villanueva
April 22, 2016

INTRODUCTION

With a large segment of the American population living longer, there is an everincreasing need for institutionalized care of the elderly.1 Cases which involve claims of
neglect in nursing homes often do not fit the typical medical malpractice case. This is
because nursing home cases often involve the failure to provide routine care, which
sounds in ordinary negligence. Although nursing homes are a licensed health facility,
cases concerning injuries of residents should not be limited to the stringent statutory
requirements of medical malpractice statutes. This is because failure to provide ordinary,
routine care can be understood by laypersons and expert testimony is not required.
Medical malpractice statutory requirements include a shorter statute of limitations, notice
of filing suit, and a higher burden of proof that requires expert testimony.2 As a result,
there can be little question that medical malpractice statutes make it significantly harder
for an injured victim to recover from a licensed health facility for negligence.3 Some
argue that a crackdown on medical malpractice has resulted in a roll back in the rights
of the injured, with some state supreme courts even declaring caps on damages
unconstitutional.4
Because such statutes are favorable to health care providers, it is common for defendants
to seek to have claims dismissed or take advantage of other statutory protections by
1 Gerard Mantese et. al., Issues Relating to the Care of the Elderly in Nursing Homes,
MICH. B.J., FEB 1994, at 176.
2 89 A.L.R.4th 887 (Originally published in 1991).
3 5 Key Pros and Cons of Tort Reform, NLCATP (March 12, 2015), http://nlcatp.org/5key-pros-and-cons-of-tort-reform/
4 Medical Malpractice Reform- Health Cost, NATIONAL CONFERENCE OF STATE
LEGISLATURES (November 2014), http://www.ncsl.org/research/health/medicalmalpractice-reform-health-cost-brief.aspx
2

alleging it should be considered within the context of medical malpractice.5

Differentiating between medical malpractice and ordinary negligence is a fine line, with
often inconsistent results. This paper will explain some of the considerations a court will
take into account when trying to decide if a plaintiff must comply with the statute, or can
proceed under a theory of ordinary negligence.
Part 1 of this paper will discuss the existing problems with nursing homes, their high
rates of injury and common causes. Part 2 will discuss procedural requirements for
filing suit covered by a medical malpractice statute, the disadvantages this brings to
plaintiffs, and how the possibility that the claim sounds in ordinary negligence should not
be ignored. Part 3 will discuss the test established in the Michigan case Bryant v.
Oakpointe to determine if a claim is ordinary negligence or medical malpractice. Part 4
will discuss how medical malpractice and ordinary negligence has been applied in a
variety of situations.

PART 1: EXISTING PROBLEMS WITH NURSING HOMES, HIGH RATES OF

INJURY & COMMON CAUSES
Many courts have recognized that in light of an elderly patients physical and
mental condition, there is a duty to exercise reasonable care.6 This can include simply
escorting a frail patient to the bathroom, so that the patient doesnt fall and break his leg
due to inadequate supervision.7 It can also include making sure a feeding tube is inserted,
5 Felicia Scroggins, Differentiating Medical Malpractice and Personal Injury Claims in
the Context of Statutory Protections: Lacoste v. Pendleton Methodist Hosp., L.L.C., 3 J.
Health & Biomedical L. 367, 371 (2007)
6 Bremenkamp v. Beverly Enterprises-Kansas, Inc., 762 F. Supp. 884, 890, 1991 WL
69404 (D. Kan. 1991).
7 Id.
3

so that a patient isnt withheld food and water for two days (which resulted in death and
$64 million in punitive damages to an understaffed nursing home in Arkansas.)8
Understaffed nursing homes contribute to life-threatening incidences of severe
bedsores, malnutrition, dehydration and infections that could have been easily prevented.9
These are personal injuries that arise as a result of deviations in ordinary, routine care and
not medical care. One of the most prevalent problems in such facilities is bedsores. In the
United States, it is estimated that up to a quarter of patients in nursing homes suffer from
bedsores at any given time. 10
Even high-end care facilities are not immune to serious problems, as a recent case
in California demonstrates.11 An 87-year-old woman died of complications from
bedsores in a $100,000 per year facility, and her estate was awarded $1 million for the
nursing homes negligence.12 The same nursing home defendant, Emeritus, was fined for
$23 million in another fatal bedsore incident in Seattle.13 These are injuries that do not
result from a doctor performing complicated surgery, or a prescription wrongfully given.
These injuries arise because of a failure to provide ordinary care.

8 Sauer v. Advocat Inc., No. CIV-2000-5 (Ark.Cir.Ct. 2001).

9 Report: Understaffed Nursing Homes Endanger Patients, ABC NEWS
abcnews.go.com/US/story?id=96416 (last visited April 22, 2016).
10 Jeannettte Franks, P.h.D., Bedsores: Risk Factors & Prevention, A PLACE FOR MOM
(April 9, 2015), http://www.aplaceformom.com/senior-care-resources/articles/bedsores
11 Paul Payne, Emeritus at Santa Rosa nursing home to pay $1 million in settlement, THE
PRESS DEMOCRAT (Feb. 23. 2016), http://www.pressdemocrat.com/news/5275411181/emeritus-at-santa-rosa-nursing?artslide=0
12 Id.
13 Rami Grunbaum, $23M verdict stings Seattle-based assisted-living giant Emeritus,
THE SEATTLE TIMES (April 6, 2013), http://www.seattletimes.com/business/23m-verdictstings-seattle-based-assisted-living-giant-emeritus/
4

The root cause of these injuries, chronic understaffing, is a common problem in

for-profit nursing homes who reap millions from unsuspecting patients and their families.
14

Although nursing homes are inspected by federal agencies, the facilities prepare for the

inspection and it is estimated that staffing levels are thus artificially inflated.15 Failing to
provide enough workers to give adequate care to elderly patients is essentially corporate
negligence that falls outside the medical malpractice context.16
In 2008, a report by the U.S. Department of Health and Human Services Office
of the Inspector General found that the most common deficiencies in nursing homes arose
from failing to provide adequate quality-of-life.17 Overall, 91 percent of such places were
cited for deficiencies, with variations among jurisdictions and higher rates in for-profit
facilities.18 Over 43 percent were cited for inadequacies involving housekeeping, dietary
services, prevention of accident hazards, and providing for residents well-being.19 While
medical training might be required for physical assessments or ensuring proper dosage of
medication, no special training is needed to make sure a resident is bathed, given food
and water, and provided a minimally safe environment.20 Yet it is these requirements for

14 Report: Understaffed Nursing Homes Endanger Patients, ABC NEWS

abcnews.go.com/US/story?id=96416 (last visited April 22, 2016).
15 Jeff Kelly Lowenstein, Analysis shows widespread discrepancies in staffing levels
reported by nursing homes, THE CENTER FOR PUBLIC INTEGRITY (Nov. 12, 2014),
http://www.publicintegrity.org/2014/11/12/16246/analysis-shows-widespreaddiscrepancies-staffing-levels-reported-nursing-homes
16 Estate of French v. Stratford House, 333 S.W.3d 546, 558, 2011 WL 238819 (Tenn.
2011)
17 Daniel R. Levinson, Inspector Gen., Dept. of Health & Human Servs., Memorandum
Report: Trends in Nursing Home Deficiencies and Complaints, OEI-02-08-00140, at 8
(Sept. 18, 2008), www.oig.hhs.gov/oei/reports/oei-02-08-00140.pdf.
18 Id.
19 Id.
20 Brian G. Brooks, M. Chad Trammell, S. Drake Martin, Don't Forget the Ordinary
Negligence Claim, TRIAL, August 2011, at 24, 30.
5

quality of life which result in the greatest number of deficiencies in such facilities, and
are the contributing cause to the most injuries.21

PART 2: REQUIREMENTS FOR FILING UNDER MEDICAL MALPRACTICE

STATUES, DISADVANTAGES, AND HOW ORDINARY NEGLIGENCE
SHOULDNT BE IGNORED
If a claim arises out of the course of a professional medical relationship, it must be
brought under a states medical malpractice statute. The primary objective of such
statutes is to provide for expert testimony when a claim arises within the course of a
professional medical judgment beyond the realm of common knowledge and experience
of jurors.22 In Michigan, the plaintiff must give notice 182 days before a suit is filed, and
the notice must include:
1.
2.
3.
4.
5.

Basis for the claim;

Legal elements of professional negligence;
The manner in which the duty of the health professional was breached;
How the breach allegedly caused the injury;
The names of all defendants.23

There are many ways this statutory scheme benefits nursing home defendants. Generally,
the statute of limitations is two years for most malpractice claims.24 The requirement to
provide notice of an intent to file gives the defendant considerable procedural advantages,
including ample time to gather evidence to prepare themselves from threat of lawsuit, and
try to get the plaintiff to settle early to avoid a long and costly process.

21 Id.
22 Bryant v. Oakpointe Villa Nursing Ctr, Inc, 471 Mich. 411, 684 N.W.2d 864 (2004).
23 MCLA 600.2912b(4); Roberts v. Mecosta Gen. Hosp. (After Remand), 470 Mich. 679,
684 N.W.2d 711 (2004).
24 MCLA 600.5805(6).
6

The biggest disadvantage of medical malpractices statutes, however, is in the lack of

economic incentive to a plaintiff to file suit in the first place. Requiring an expert witness
comes at a considerable cost, and it is not unusual for a plaintiffs attorney to spend
between $40,000 to $60,000 in out of pocket expenses just to initially litigate a case.25 An
attorney would be understandably wary of taking such a case on a contingency basis.26 If
the lawsuit fails to find professional negligence, the attorney will need to absorb
insurmountable costs.27
Even if the case succeeds, non-economic damages are capped by statute and a plaintiff
can fail to be fully compensated for his injury.28 In Michigan, for instance, section 1483
was enacted in 1994 and caps damages according to the consumer index.29 Even if a
plaintiff suffers from loss of severe brain function as a result of injury, the cap could be
$500,000 for pain and suffering. 30 If the claim falls outside the enumerated serious
injuries, the award could be subject to a lower cap of $280,000.31
Since insurance defendants know that this amount is the most a plaintiff can recover, they
are often incentivized to drag the case out and less likely to settle. 32

If it goes to trial,

this process can take 2-4 years to fully litigate.33 The initial $40,000 to $60,000 spent by
an attorney to litigate will likely double, as expert doctors from out of town need to be
available to testify. 34 As a result of these costs, a plaintiffs attorney will earn an
25 Symposium Transcript: What's on the Horizon for Michigan Medical Malpractice?, 14
MICH. ST. U. J. MED. & L. 477, 483 (2010)
26 Id.
27 Id.
28 Id. at 481-82.
29 Id.
30 Id.
31 Id.
32 Id.
33 Id.
34 Id.
7

uncertain and often unprofitable amount even if the case is successful.35 It is no surprise
that as a result of malpractice statutes, such cases have decreased by up to 80%. 36 Some
legal scholars have called this economic immunity for doctors, because the majority of
medical professionals who are negligent do not need to worry about patients finding legal
representation, and consequently do not need to worry about being sued.37 Others have
said that it punishes plaintiffs with legitimate claims, when they do not have large
damages.38 Although there have been successful challenges to the constitutionality of
such statues in states such as Illinois and Florida, it has been upheld in Michigan and is
enforceable.39
Medical malpractice statutes are the product of tort reform, and the medical communitys
attempt to curb increasing costs for medical malpractice insurance.40 The cost of
insurance has increased exponentially every 5-10 years, sometimes as high as 100%.41
Medical malpractice insurers have also benefited from some of the highest profit margins
in the industry, and debate exists as to whether increasing costs are really the result of
litigation. 42 Regardless, malpractice statutes are a significant hurdle when bringing suit
against any licensed health facility.

35 Id.
36 Id.
37 Id.
38 Jay Greene, Benefits of changes in malpractice law still being disputed, CRAINS
DETROIT BUSINESS (May 14, 2013),
http://www.crainsdetroit.com/article/20130512/NEWS/305129992/benefits-of-changesin-malpractice-law-still-being-disputed
39 Id.
40 Scott Baltic, Who benefits from tort reform?, MEDICAL ECONOMICS (Aug. 9, 2013),
http://medicaleconomics.modernmedicine.com/medical-economics/content/tags/alice-ggosfield/who-benefits-tort-reform
41 Id.
42 Id.
8

To avoid these hurdles, an easier method of filing suit is to avoid the statute altogether
and have a traditional claim for ordinary negligence. This can make sense in some
situations, where medical judgment is not necessary to determine the standard of care to
be applied in a given situation (even if it involves a licensed health facility).43 Research
has shown that the most common injuries in nursing homes arise from falls, pressure
sores, malnutrition, dehydration, elopement and assault or sexual abuse by nursing home
employees.44 Many of these injuries, such as assessing whether a person suffers from a
particular malady that would make the person more vulnerable to injury, might require
professional judgment. 45 However, a substantial number of these claims arise from a
common duty to provide custodial or routine care. 46

PART 3: THE BRYANT V. OAKPOINT TEST

In the nursing home context, recent case law has recognized that some claims can be
brought under ordinary negligence, whereas others should be brought under medical
malpractice. The default presumption that any claim brought against any licensed health
facility is medical malpractice has been chipped away, so that a court will look at each
alleged action, the totality of the circumstances, and consider if the statute applies.47
While some allegations will need to be judged as to whether a medical professional has
complied with the degree of care, diligence and skill of other professionals in similar
43 Brian G. Brooks, M. Chad Trammell, S. Drake Martin, Don't Forget the Ordinary
Negligence Claim, TRIAL, August 2011, at 24, 27.
44 Michael J. Denning, What you need to know about nursing home care liability,
HEYLROYSTER.COM (May 28, 2015), http://www.heylroyster.com/_data/files/Seminar
%202015/J-MJD-V6-Final.pdf
45 Id.
46 Id.
47 Brian G. Brooks, M. Chad Trammell, S. Drake Martin, Don't Forget the Ordinary
Negligence Claim, TRIAL, August 2011, at 24, 27
9

circumstances, other allegations will require the jury to evaluate whether the conduct was
reasonable according to the jurys common understanding of right and wrong.48
The leading case in Michigan which has demonstrated this concept is Bryant v. Oakpoint
Villa Nursing Center, 471 Mich. 411 (2004). Bryant involved a nursing home patient
who died of asphyxiation after falling between the bed and a bed rail. 49 After suffering
from a series of strokes, the patient required round-the-clock care and special devices to
restrict her mobility for her own safety.50 The day before her death, two nursing assistants
had found the plaintiff tangled in her bedding and the great risk of asphyxiation was
known by the defendants.51 Finding the facility had taken inappropriate action to prevent
the accident, the court found this claim sounded in ordinary negligence.52
Bryant reasoned that [t]he fact that an employee of a licensed health care facility was
engaging in medical care at the time the alleged negligence occurred means that the
plaintiff's claim may possibly sound in medical malpractice; it does not mean that the
plaintiff's claim certainly sounds in medical malpractice. (emphasis added.) 53 The court
articulated a two part test to determine if the medical malpractice statute applies, and said
it must be determined as to whether:

1. The action occurred within the course of a professional relationship; and

48 Amanda E. Spinner, Common Ignorance: Medical Malpractice Law and the

Misconceived Application of the "Common Knowledge" and "Res Ipsa Loquitur"
Doctrines, 31 TOURO L. REV. 521, 526 (2015).
49 Bryant at 415-416.
50 Id.
51 Id. at 430.
52 Id.
53 Id. at 421.

10

2. The claim raises questions of medical judgment beyond the realm of common
knowledge and experience.54

Therefore, just because a claim occurred in a licensed healthcare facility, it does not
automatically follow that the procedural and substantive requirements of medical
malpractice laws will govern the action.55 If the reasonableness of an employees actions
can be rationally evaluated by lay jurors, ordinary negligence principles should be
applied. 56 If standard of care needs to first be established by expert testimony in order to
determine if a duty was breached, the claim is of the type that the medical malpractice
statutes were meant to encompass.57
These cases are complex and fact sensitive, particularly when they concern allegations of
failure to train staff to prevent injuries to patients. For example, the Bryant court
observed that generally staffing decisions and patient monitoring involve questions of
professional medical management which cannot be judged by the common knowledge
of the jury, but the pertinent question was whether the actions of the employee required
some specialized knowledge.58 Staffing decisions to monitor patients that require
specialized knowledge of the patients psychiatric illness, for instance, is a question of
medical judgment so as to be covered by the statute.59 The same can be said regarding
whether a bed rail creates a risk of entrapment for a patient considering the patients

54 Id. at 422.
55 Id.
56 Id.
57 Id. at 423.
58 Id. at 426.
59 Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 45, 594 N.W.2d 455, 465,
1999 WL 373742 (1999).
11

medical history and behavior, and a duty to train employees to mitigate this risk.60 As a
result, the Bryant court determined that the portion of the plaintiffs claims, alleging
failure to train employees to prevent the nursing home patient from asphyxiation,
sounded in medical malpractice. 61
However, when employees of a medical facility have specific knowledge of the risk to a
patient and do nothing to rectify it, the claim sounds in ordinary negligence.62 The day
before the patient in Bryant died, she was discovered by employees to be dangerously
close to asphyxiating herself in the bed rails.63 Employees who saw this incident
informed supervising nurses of the hazard.64 Despite the awareness that the patient had a
compulsive sliding problem, there was no corrective action taken to prevent future
harm.65 In such a situation, no expert testimony is required to inform jurors that an
immobile patient, repeatedly at risk of being stuck in a suffocating position, needs to be
carefully monitored.66 The same could be said of a patient who has a tendency to slide
underwater while taking a bath, and after employees observe this danger nothing is done
so that the patient drowns while taking a bath the next day.67
Bryant has been interpreted to show that once a problem is known, the failure to take
corrective action can sound in ordinary negligence.68 It is the judgment of a medical
professional to decide if there is a problem in the first place, which more squarely fits
60 Bryant at 427.
61 Id.
62 Id. at 430.
63 Id.
64 Id.
65 Id.
66 Id. at 431.
67 Id.
68 Jackson v. Harper Hosp., No. 262466, 2006 WL 2613599, at *4 (Mich. Ct. App. Sept.
12, 2006).
12

under medical malpractice.69 Cases involving an assessment and whether a patients

particular condition makes them more susceptible to injury are more likely to be
considered medical malpractice. An example of this would be a patient who is unsteady
and likely to fall after knee replacement surgery, and injures herself on a raised toilet.70
Knowing the patient has special requirements is independent, professional judgment.

PART 4: HOW MEDICAL MALPRACTICE AND ORDINARY NEGLIGENCE

HAS BEEN APPLIED IN A VARIETY OF SITUATIONS
Common sense should apply when determining if a negligence case requires expert
testimony, and a court should consider the underlying policy for medical malpractice
statutes and whether a jury is perfectly capable of determining standard of care without
the need for medical expert testimony. Such testimony is most appropriate when the
issue involves actual medical care and is outside the realm of an average jurors
knowledge.71 For instance, medical testimony to establish that a patient needs to be
changed after they have soiled themselves is not needed. A juror would perform the same
task for a child under two years old. In fact, tasks performed by nursing home staff are
often the same duties performed by jurors for their children within the first few months of
their lives.72
Furthermore, some damages- such as when a nursing home resident is not cleaned
properly and forced to lie in his own bodily waste for an extended period of time- are best

69 David v. Sternberg, 272 Mich. App. 377, 384 (2006).

70 Sawicki v. Katzvinsky, No. 318818, 2015 WL 1214843, at *4 (Mich. Ct. App. Mar. 17,
2015).
71 Id.
72 Id.
13

determined by a jury since they involve injury to ones dignity.73 Proper hygiene and
regular bathing can be considered ordinary negligence, and this includes cleaning and
changing a nursing home patient after she has soiled herself.74 On the other hand, failing
to keep surroundings clean and sterile to avoid the risk of infection, as well as changing
and cleaning a patient in light of her medical condition, is medical malpractice.75
Ordinary negligence can also apply in facilities where patients have a high risk of
elopement due to Alzheimers or dementia. In an unpublished decision three years after
Bryant, a Michigan case concerning the injury of an Alzheimers patient found the
medical malpractice statute did not apply.76 A nursing home patient, who was a known
flight risk, exited the building through an unlocked courtyard door.77 After staff members
chased him, he fell and sustained a severe head injury. 78 Although the first prong of
Bryant was met and a professional relationship existed between the patient and the
facility, the second prong was not satisfied since the claim did not require special medical
knowledge.79 The cause of the patients injury was because of the facilitys failure to
secure a door and prevent the risk of danger, and ordinary negligence principles were
used.80
Generally, cases concerning staffing decisions are among the most difficult to
determine whether the case is medical malpractice or ordinary negligence. If the
73 Id at 29.
74 Davis v. Botsford Gen. Hosp., No. 250880, 2005 WL 1224617, at *2 (Mich. Ct. App.
May 24, 2005).
75 Id.
76 Ostrom v. Manorcare Health Servs., Inc., No. 06-CV-12041, 2007 WL 188132, at *6
(E.D. Mich. Jan. 22, 2007).
77 Id.
78 Id.
79 Id. at *4.
80 Id. at *6.
14

monitoring of patients involve specialized knowledge of the patients medical condition,

the medical malpractice requirements apply even if the staff themselves are unlicensed.81
A Michigan case was brought on behalf of a patient at a nursing home who died of
choking during mealtime.82 In allegations against certified nursing assistants and kitchen
staff, the plaintiff contended that these individuals were not licensed health care
professionals and did not make medical decisions, and therefore only complied with rules
and policies.83
The court disagreed and said that:
MCL 600.5838a(1) plainly refers to an employee or agent of a licensed
health facility or agency who is engaging in or otherwise assisting in medical care
and treatment.... Thus, the acts or omissions of the CNAs, cooks, and kitchen
staff could give rise to a medical malpractice claim if these persons were engaged
in or otherwise assisted in medical care and treatment.84
Therefore, knowledge that the plaintiff required special monitoring to reduce the
possibility of the risk of choking was medical malpractice, and expert testimony was
needed to explain to the jury the standards of care for someone with special medical
needs.85 It follows that just because a staff member was not a licensed medical
professional, the professional judgment of a licensed healthcare facility will be imputed
onto the reasonableness of staff actions when rules and policies are implemented in
accordance with proper medical care.
81 Dorris at 455.
82 Polomski v. Nightingale E. Nursing Ctr., Inc., No. 311041, 2014 WL 5018815 (Mich.
Ct. App. Oct. 7, 2014).
83 Id. at *4.
84 Id. at *5.
85 Id.
15

However, even licensed staff can abandon their medical duties so that their conduct is
considered ordinary negligence. This can be especially seen in cases concerning abuse of
patients. In 2014, the Court of Appeals of Michigan heard a case that involved a 14 year
old girl who was sexually assaulted while being transported in an ambulance after
attempting suicide.86 The plaintiffs lawsuit against the ambulance service arose from
negligently hiring, training and supervising an employee, a licensed health professional.87
Citing Bryant, the court determined that although the ambulance service was transporting
the girl for medical treatment, the reasonableness of the companys acts or omissions in
this case did not raise issues of medical judgment that fell outside the jurors common
knowledge and experience.88
Furthermore, Michigan ruled that a case against a hospital for invasion of privacy and
intentional infliction of emotional distress did not sound in medical malpractice, even
though the case concerned a licensed nurse.89 A woman had given birth in Battle Creek
and was assured her medical records would be kept confidential.90 She had warned the
hospital that a nurse, who worked in another unit and was her ex-husbands girlfriend,
might try to access her file.91 After the nurse wrongfully accessed the information and it
was subsequently used in a custody dispute, the court cited Bryant to establish that a
claim that the hospital failed to adopt adequate procedures to protect patient
confidentiality sounded in medical malpractice. 92 However, the claim that the hospital
86 Doe v. Doe, No. 307420, 2014 WL 6852750 (Mich. Ct. App. Dec. 4, 2014).
87 Id.
88 Id. at *20.
89 Ware v. Bronson Methodist Hosp., No. 307886, 2014 WL 5689877 (Mich. Ct. App.
Nov. 4, 2014).
90 Id.
91 Id.
92 Id.
16

failed to enforce its existing policies to protect confidentiality was ordinary negligence.93
The court noted there was a difference as to whether the hospital could have adopted
better procedures, which involves a question concerning who needs access to medical
records to provide treatment, and whether the hospital enforced its existing procedures,
which does not require expert testimony.94
Injuries concerning falls, which are the most common cause of injuries in health
facilities, can be a mixture of both concepts. Michigan has repeatedly recognized that if a
patient is injured after falling in a hospital or other licensed health facility, the claim can
be brought under either medical malpractice or ordinary negligence.95 The court carefully
looks at the theory under which the case is pled to determine whether the facts support
either cause of action.96
Risk assessment and knowing whether a patient requires special precautions to avoid
injury from falling is a question of medical judgment.97 However, once the hazard has
been determined, failure to act is ordinary negligence. 98 In a case concerning a patient
who fell when she was left unattended in the bathroom, the court considered an
assessment document that had evaluated and recognized the potential hazard to the
plaintiff. 99 Because the case only alleged that the facility knew of the fall hazard but did
not act properly in response to it, the court said that the claim sounded in ordinary
93 Id. at *3.
94 Id. at *6.
95 McLeod v. Plymouth Court Nursing Home, 957 F. Supp. 113, 115, 1997 WL 157597
(E.D. Mich. 1997).
96 Id.
97 Sturgis Bank & Trust Co. v. Hillsdale Community Health Ctr., 268 Mich.App 484,
498; 708 NW2d 453 (2005).
98 Harrier v. Oakwood Skilled Nursing Ctr.-Trenton, No. 273729, 2007 WL 914628, at
*2 (Mich. Ct. App. Mar. 27, 2007).
99 Id.
17

negligence.100 Medical expertise was also not required for a technician to help a patient
from a wheelchair onto an examination table avoid falling.101 Ordinary negligence also
applied to leaving a wheelchair unlocked, resulting in a nursing home patient unable to
get into it safely, because such an action is widely known to make the wheelchair
unstable to a person who requires its use.102
Because of the uncertainty when courts apply these concepts, and the likelihood that
many cases will involve mixed allegations of both ordinary negligence and medical
malpractice, it is best to file an affidavit of merit within the statute of limitations. As a
safety measure to preserve the lawsuit, an attorney should comply with requirements of
the medical malpractice statutes in case the court ultimately rules that the statute applies.
As was observed in Bryant, in future cases... in which the line between ordinary
negligence and medical malpractice is not easily distinguishable, plaintiffs are advised as
a matter of prudence to file their claims alternatively in medical malpractice and ordinary
negligence within the applicable period of limitations.103
Indeed, many nursing home cases can often be understood as hybrid actions derived from
professional negligence and ordinary negligence acting together.104 Not having enough
staff to provide basic every day care, such as changing a patient when she wets herself,
can result in pressure sores that should sound in ordinary negligence. However, when
proper treatment is not administered and those sores lead to serious and life-threatening
infection, this entails questions of professional medical judgment that is covered by the
100 Id.
101 Regalski v Cardiology Assn, PC, 459 Mich 891; 587 NW2d 502 (1998).
102 Id. at 114.
103 Bryant, supra at 432-433.
104 Brian G. Brooks, M. Chad Trammell, S. Drake Martin, Don't Forget the Ordinary
Negligence Claim, TRIAL, August 2011, at 24, 30.
18

procedural requirements of medical malpractice statutes. Furthermore, many of these

cases could be covered under negligence per se, since state law in Michigan confers
rights to privacy, an appropriate diet, appropriate care, and the right to refuse treatment in
some situations.105

CONCLUSION
From a patient safety perspective, applying medical malpractice to every injury claim
arising from nursing home negligence makes no sense. In a world where our health care
is increasingly reliant on teams of people with specialized duties, enabling a patient to
bring a claim helps improve the system as a whole by finding weaknesses in the chains
that support how patients are cared for.106 The reality is that most elderly patients will be
unlikely to bring claims against a nursing home because of fear, lack of resources,
support and independence.
Elderly individuals comprise over 12% of the population, and are especially vulnerable to
abuse, common neglect and exploitation,107 none of which should be considered
medical treatment. The patients and their families who choose to bring claims against
negligent nursing homes should not face such hurdles that the medical malpractice
statutes have imposed, and they deserve to be cared for with respect and dignity. This in
turn acts to prevent future mistakes that harm patients, and keeps large corporations
cognizant of the need to implement practices that contribute to safety.108 For-profit
105 MCLA 333.20201.
106 Symposium Transcript: What's on the Horizon for Michigan Medical Malpractice?,
14 MICH. ST. U. J. MED. & L. 477, 495 (2010).
107 Arthur Meirson, Prosecuting Elder Abuse: Setting the Gold Standard in the Golden
State, 60 HASTINGS L.J. 431, 433 (2008).
108 Id.
19

nursing home facilities who choose to increase profits- rather than adequately inspect,
train and hire competent staff- will otherwise escape liability and injuries to the elderly
will continue to rise.

20