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De Zacks v. Tendercare7/28/2005
UNPUBLISHED
Before: Owens, P.J., and Cavanagh and Neff, JJ.
Plaintiff appeals on leave granted an order granting summary disposition in favor of defendants under MCR 2.116(C)(8). The trial court found that plaintiff's claims sounded in medical malpractice rather than negligence and that plaintiff had failed to meet the procedural requirements for a medical malpractice claim pursuant to MCL 600.2912. This case arises from the death of plaintiff's husband while a patient at defendant Tendercare's nursing home under the supervision of staff supplied by defendant Whispering Way Care Services (Whispering Way). We affirm.
While plaintiff's decedent was a patient at Tendercare, Georgia Shaft, R.N. was a supervisor responsible for formulating his care plan. Plaintiff claimed Shaft had several felony convictions that prohibited her from working in a supervisory position at any nursing home facility. Plaintiff further alleged that the care provided to the decedent was inadequate, that there were medication and diet errors, that he fell and was injured, that injuries were untreated, and that there were times when he was inappropriately groomed and dressed. Also, plaintiff alleged that in compliance with the care plan formulated by Shafts, plaintiff's decedent was given only basic care, rather than the more intensive care required for his dementia, end-stage renal disease, and coronary artery disease. On August 15, 2000, the decedent went into cardiac arrest and died. Plaintiff claimed that he was on "full code" status, which required prompt medical treatment in case of a cardiac event. Plaintiff alleged that no one at Tendercare attempted to revive him, nor was any call made to emergency services.
Plaintiff filed a complaint alleging, among other claims, that Tendercare was negligent in failing to provide adequate diagnosis and care at the time plaintiff's decedent went into cardiac arrest and negligent in failing to provide adequate care generally, which contributed to his poor health and death. Plaintiff further alleged that Tendercare was negligent in failing to screen its employees and in placing a temporary contract employee in charge of the care of sixty to seventy patients on the night plaintiff's decedent died. Plaintiff also alleged that Tendercare was negligent in failing to advise its employees of the code status of its patients, in placing Shaft in a supervisory position, and in failing to adequately train its employees. Plaintiff alleged that Whispering Way was negligent in failing to screen, train, and supervise its employees.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that the allegations in plaintiff's complaint were all related to medical malpractice because they arose in the context of defendant's professional relationship with the decedent. Defendants argued that the claims should have been dismissed because plaintiff failed to comply with the procedural requirements for medical malpractice claims. See MCL 600.2912. Contrary to plaintiff's argument that the claims were for ordinary negligence, involved issues that were readily understandable by a jury, and did not require expert testimony, the trial court determined that plaintiff's claims involved the "administration of cardiopulmonary resuscitation, resident treatment, nursing staff supervision" and that the claim sounded in medical malpractice.
Defendants' summary disposition motion was granted. We granted plaintiff's application for a delayed appeal. A trial court's decision to grant summary disposition is reviewed de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
First, plaintiff argues that her claim under
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