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A Better Partnership
March 06, 2015

COA finds Defendant does not lose immunity under Emergency Medical Services Act for failure to timely file an affidavit of meritorious defense

An improper intubation allegedly cost Tracy McLain her life.  In the ensuing case of Estate of McLain v. City of Lansing Fire Department et al., No. 318927, the Court of Appeals held that the defendant fire department did not lose its immunity under the Emergency Medical Services Act (“EMSA”) due to its failure to timely file an affidavit of meritorious defense.
 
Tracy McLain suffered a respiratory attack in February 2009.  When emergency responders arrived, they administered medication and CPR, and inserted a breathing tube into McLain.  They transported her to a nearby hospital.  Within a few days in the hospital, McLain passed away.
 
Tod McLain, the personal representative for Tracy’s estate, brought suit claiming that the defendants acted with gross negligence and improperly inserted the tube into Tracy’s esophagus (the wrong place), as opposed to her trachea (the right place).  To support his claim, Tod offered a medical intern’s progress note that stated that the breathing tube was in Tracy’s esophagus.  The note, however, did not indicate at what point the tube became lodged in her esophagus.  The intern who wrote it also denied any firsthand knowledge of Tracy’s condition while in the hospital.
 
The trial court granted summary disposition to defendants.  Under the EMSA, Tod had to show that the defendants acted with gross negligence or willful misconduct.  The trial court held that Tod failed to create a question of fact on gross negligence by merely submitting the intern’s note into evidence and questioning the credibility of one defendant’s testimony.
 
Tod appealed for two reasons.  First, he argued that the defendants forfeited the EMSA’s immunity—the gross negligence standard—when they failed to timely file an affidavit of meritorious defense.  Second, he argued that his evidence was sufficient to create a question of fact on defendants’ alleged gross negligence.
 
The Court of Appeals found for defendants on both issues.  First, it found that the defendants did not lose their immunity by failing to file an affidavit of meritorious defense.  The Court of Appeals read the EMSA in pari materia with the Governmental Tort Liability Act (“GTLA”), under which a defendant claiming governmental immunity does not forfeit immunity for failure to file the affidavit.  Prior case law stated that the EMSA and GTLA “share the common purpose of immunizing certain agents from ordinary negligence and permitting liability for gross negligence.”  Jennings v. Southwood, 521 NW2d 230 (Mich. 1994).  Tod, therefore, had to prove gross negligence in order to prevail.
 
Next, the Court of Appeals found that Tod did not create a question of fact on gross negligence.  The intern’s note and Tod’s assertions that one defendant’s testimony was not credible were insufficient to create a question of fact.  The Court of Appeals noted that Tod failed to provide testimony contradicting the defendant’s version of the events.  Instead, he merely relied on his assertion.
 
The Court of Appeals, therefore, affirmed summary disposition for the defendants.

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