Jennings v. Southwood

499 N.W.2d 460, 198 Mich. App. 713

• Court: Michigan Court of Appeals
• Decided: March 16, 1993
• Docket: Docket 119614
• Status: Published

Opinions

Per Curiam.

In this lawsuit involving issues of governmental immunity, plaintiff appeals as of right judgments entered in favor of defendants. We affirm.

This case arose as a result of defendants’ failure to transport thirteen-year-old Cynthia K. Rasmussen to a hospital. Defendants Richard J. South-wood, Bill Boyd, Jr., and Dan Daniels are emergency medical personnel who on November 25, 1986, responded to a call that Cynthia was experiencing a diabetic seizure. At trial there was conflicting testimony regarding whether these defendants or Cynthia’s mother made the ultimate decision not to transport Cynthia to a hospital. It is undisputed, however, that Cynthia has been in a coma since the day of the incident.

Plaintiff raises two issues for our review. To properly resolve this appeal, it is necessary to review plaintiffs second issue first. To abrogate defendants’ individual immunity under the emergency medical services act (emsa), plaintiff was required to establish an act or omission amounting to "gross negligence or wilful misconduct.” MCL 333.20737; MSA 14.15(20737), now see MCL 333.20965; MSA 14.15(20965). Plaintiff did not plead wilful misconduct. Rather, the only exception to immunity that plaintiff asserted was gross negligence.

On appeal, plaintiff argues that it was error for the trial court to attempt to illustrate the concept of gross negligence to the jury by citing analogous examples of criminal misconduct. Although we are persuaded that the trial court erred in this regard, we are not persuaded that plaintiff is entitled to reversal.

As another panel of this Court recently observed, few aspects of negligence law have proven more frustrating to the courts of this state than the construction of the term "gross negligence.” Pavlov v Community Emergency Medical Service, Inc, 195 Mich App 711, 718; 491 NW2d 874 (1992). Nonetheless, for purposes of the emsa, the common-law definition of gross negligence adopted in Gibbard v Cursan, 225 Mich 311, 319; 196 NW 398 (1923), has been retained. Accordingly, to avoid the immunity afforded under the emsa pursuant to the gross negligence exception of the emsa, plaintiff was required to plead and prove that defendants’ negligence occurred after some precedent negligence on the part of Cynthia or her mother. Pavlov, supra; Abraham v Jackson, 189 Mich App 367, 372; 473 NW2d 699 (1991).¹ This plaintiff has not done. Viewed in a light most favorable to plaintiff, the allegations in plaintiff’s complaint allege solely that defendants failed to conduct a proper inquiry to determine whether Cynthia was actually experiencing a diabetic seizure. No averment of precedent negligence appears in plaintiff’s complaint:

17. [D]efendants were guilty of gross negligence in failing to transport plaintiff, Cynthia K. Rasmussen to the services of appropriate health care persons on November 25, 1986 at approximately 7:22 p.m. for the following reasons:

(a) Cynthia K. Rasmussen was emotionally distraught.

(b) Cynthia K. Rasmussen was suffering from seizure activity.

(c) Cynthia K. Rasmussen was exhibiting vital signs indicative of hypoglycemia.

(d) Defendants failed to consult an appropriate licensed physician pursuant to the protocol of the Berrien County Emergency Medical Control Authority protocol for diabetic emergencies.

(e) Defendants failed to obtain permission from a duly licensed physician for the purposes of declaring this to be a nonemergency pursuant to the health code.

(f) An additional failure of these defendants in that they failed to obtain a proper and adequate history of Cynthia K. Rasmussen.

20. That defendants were guilty of gross negligence with regard to the care and treatment rendered to plaintiff, Cynthia K. Rasmussen on November 26, 1986 at approximately 12:30 a.m. despite defendants’ prior knowledge of plaintiff, Cynthia K. Rasmussen’s diabetic condition and the symptoms exhibited by her upon examination did not administer an iv solution containing glucose to offset the extremely dangerous glucose levels of plaintiff, Cynthia K. Rasmussen’s blood.

Similarly, in his brief on appeal, plaintiff does not direct this Court to any record evidence of precedent negligence. Plaintiff argues instead that there was testimony that defendants’ conduct was sufficiently reckless so as to demonstrate a substantial lack of concern for whether an injury might result. As noted above, however, this is not the appropriate test for avoiding immunity under the emsa.

It is well settled that instructional error compels reversal only where the failure to do so would be inconsistent with substantial justice. Reisman v Regents of Wayne State Univ, 188 Mich App 526, 532; 470 NW2d 678 (1991). Such injustice is not present in this case for the reason that plaintiff has failed to plead or prove gross negligence as defined by Gibbard, supra.

In view of our resolution of plaintiff’s second issue, plaintiff’s first issue merits only cursory discussion. Plaintiff contends that the trial court erred in granting summary disposition in favor of the municipal defendants, Lake Township and Lake Township Ambulance and Rescue. We agree, but again conclude that reversal is not required. Under the recent decision of the Supreme Court in Malcolm v East Detroit, 437 Mich 132, 147-148; 468 NW2d 479 (1991), the trial court’s conclusion that the municipal defendants were entitled to judgment as a matter of law because they could not be held vicariously liable under the former statute for the gross negligence of their emergency personnel was incorrect. However, because there was no gross negligence as a matter of law, vicarious liability of the municipality is no longer at issue. An order of summary disposition need not be reversed where the trial court reaches the right result but for the wrong reason. See State Mutual Ins Co v Russell, 185 Mich App 521, 528; 462 NW2d 785 (1990).

Affirmed.

1 As noted in Pavlov, supra, p 720, Abraham is controlling precedent under Administrative Order No. 1990-6, 436 Mich lxxxiv.