Whether a claim sounds in ordinary negligence or medical malpractice can have a significant impact on the viability of a plaintiff's claim and the scope of damages available in the action. For a claim to sound in malpractice, the defendant must be an individual or entity capable of committing professional negligence as defined in MCL 600.5838a(1). In a published opinion released on April 2, 2020, the Michigan Court of Appeals held that a corporation and an employed radiology technician were not capable of committing professional negligence for purposes of analyzing whether a claim sounds in ordinary negligence or medical malpractice. Lafave v Alliance Healthcare Services, Inc, ___ Mich App ___ (2020) (Docket No. 345986). Based on these holdings, the Michigan Court of Appeals found that the plaintiff's claims sounded in ordinary negligence because the defendant corporation and employed technician didn't meet the "prefatory condition" of status as an entity, agent or individual capable of committing malpractice under Michigan law.
The Trial Court Ruling
In Lafave, the plaintiff filed a complaint alleging counts of ordinary negligence and medical malpractice against defendant Alliance Healthcare Services, Inc after experiencing injuries in a fall from an MRI table in a mobile MRI trailer operated by Alliance in the parking lot of Bell Memorial Hospital in Ishpeming, Michigan. The MRI had been ordered by an emergency medicine physician in the Bell Memorial ER several days earlier. After the close of discovery, Alliance moved for summary disposition contending that the claims sounded in ordinary negligence and that there was insufficient evidence to establish the standard of care for the malpractice claim based on the plaintiff's expert's lack of familiarity with the local standard of care. The trial court granted the motion and dismissed the case.
Appeal Court Ruling
Under MCL 600.5838a(1), an entity must be licensed as a health facility or agency under article 17 of the Michigan Public Health Code (MPHC) to qualify as an entity capable of committing professional negligence. On appeal, the Lafave panel began its analysis by observing that it was undisputed that Alliance wasn't and couldn't be licensed as a "health facility or agency" under article 17 of the MPHC. The panel didn't elaborate on this point, but the Michigan Department of Licensing and Regulatory Affairs (LARA) website reveals that Alliance is a foreign corporation formed under the laws of Delaware. The panel raised the possibility that Alliance may have qualified as the "agent of a licensed health facility" under MCL 600.5838a(1) if it had contended that it was a contractual agent of Bell Memorial (even though Bell Memorial wasn't named as a defendant). This argument should be considered in future cases involving entities not licensed under article 17 of the MPHC.
Under MCL 600.5838a, only individuals licensed or registered under article 15 of the MPHC are subject to professional negligence claims. Turning to the radiology technician, the panel agreed with the plaintiff's argument that the technician was not a "licensed health care professional" because radiology technicians aren't licensed under article 15 of the MPHC. The court rejected several arguments advanced by Alliance on this issue including that the technician's certification by the American Registry of Radiologic Technologists (ARRT) constituted a "registration" and "specialty certification" under MCL 600.5838a(1)(b) and MCL 333.16108(2), (3). The court also rejected Alliance's argument that the radiology technician worked in a "health profession" under MCL 333.16105(2) referring back to its conclusion that the technician was not licensed under article 15 of the MPHC.
The practical effect of the panel's holding is that an individual must be licensed under article 15 of the MPHC to satisfy what the Lafave panel described as the "prefatory condition" that must be satisfied before considering the two part test established by the Michigan Supreme Court in Bryant v Oakpointe Villa Nursing Ctr for determining whether a claim sounds in medical malpractice. Therefore, individuals working in medical fields where no licensing requirement exists under Michigan law are not capable of committing professional negligence even if the individual holds a certification from a national certifying body. Of note, the result of the case may have been different if the corporate defendant had been licensed under article 17 of the MPHC as the technician would then have qualified as an agent of a licensed health facility or agency.
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