Pavlov v. Community Emergency Medical Service, Inc

491 N.W.2d 874, 195 Mich. App. 711
CourtMichigan Court of Appeals
DecidedSeptember 8, 1992
DocketDocket 129847
StatusPublished
Cited by23 cases

This text of 491 N.W.2d 874 (Pavlov v. Community Emergency Medical Service, Inc) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pavlov v. Community Emergency Medical Service, Inc, 491 N.W.2d 874, 195 Mich. App. 711 (Mich. Ct. App. 1992).

Opinions

Corrigan, J.

In this negligence action, plaintiff Galena Pavlov appeals as of right from the trial court’s grant of summary disposition based on defendants’ immunity under the former emergency medical services act (emsa), MCL 333.20701 et seq.; MSA 14.15(20701) et seq.1 We affirm.

Plaintiff and her forty-one-year-old husband Aleksandr were visiting friends on the night of [713]*713June 19, 1988, when Mr. Pavlov, who had been drinking alcohol and swimming, began experiencing shortness of breath. After someone called 911, an emergency medical services (ems) unit was dispatched to the house. The ems crew found Mr. Pavlov lying down, "complaining of shortness of breath and pain radiating to the left arm.” He was given oxygen. An advanced ems (aems) team (defendants Robert Latrielle and Christopher Newell) arrived and performed an electrocardiogram (ekg). The results were normal. The aems team removed the oxygen mask and Mr. Pavlov appeared to improve. When he asked if he should be seen by a doctor, defendants replied that he should. Mr. Pavlov said that his family would take him and he signed a release form, waiving transportation to a hospital. Defendants left the premises. Plaintiff then briefly left the room. She returned to find Mr. Pavlov lying on the floor in full cardiac arrest, ems personnel were summoned again and attempted resuscitation without success. Mr. Pavlov was later declared dead at a local hospital.

Plaintiff timely filed a three-count complaint against the two aems technicians and their private employer. She alleged negligence, wilful and wanton misconduct, and gross negligence. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). Defendants asserted immunity under the then governing provisions of the emsa because plaintiff had failed to state a claim of either wilful misconduct or gross negligence that would avoid the statutory bar. The trial court granted defendants’ motion as to all three counts.

I. IMMUNITY UNDER THE EMERGENCY MEDICAL SERVICES ACT

At the time plaintiffs claim arose, Michigan [714]*714expressly excepted emergency medical personnel from negligence claims relating to the performance of their duties. The applicable statute provided:

When performing services consistent with the individual’s training, acts or omissions of an . . . emergency medical technician, emergency medical technician specialist, or advanced emergency medical technician, do not impose liability on those individuals in the treatment of a patient when the service is performed outside a hospital. . . . All persons named in this section . . . are protected from liability unless the act or omission was the result of gross negligence or wilful misconduct. [MCL 333.20737; MSA 14.15(20737);2 emphasis added.]

Plaintiff argues that § 20737 grants ems technicians immunity only when they are acting in emergencies and that defendants’ actions in failing to transport the decedent to a hospital ended the "emergency” and "preclude[s] them from claiming statutory immunity from liability . . . .” We disagree.

The statutory scheme itself provided a definition of "emergency.” MCL 333.20703(1); MSA 14.15(20703)(1) read:

"Emergency” means a condition or situation in which an individual declares a need for immediate medical attention for any individual, or where that need is declared by emergency medical personnel or a public safety official. Upon arrival at a scene of an emergency, and after direct communication with the medical control authority and approval of [715]*715the medical control authority, an individual licensed under this part or a health professional licensed under article 15 who possesses training specific to the provision of emergency medical services, may declare that an emergency no longer exists and transportation by an ambulance is not necessary.

The undisputed evidence reflects that an emergency existed when defendants arrived at the home of the plaintiffs host, ems had been summoned by a call to the local emergency system via 911. Thus, "an individual [had] declare[d] a need for immediate medical attention for [an] individual [decedent].” The emergency was never declared at an end "after direct communication with the medical control authority and approval of the medical control authority.” Indeed, no evidence whatever suggests that defendants attempted "direct communication with the medical control authority” as defined by MCL 333.20705(2); MSA 14.15(20705X2).

The statutory grant of immunity under MCL 333.20737; MSA 14.15(20737) applies only to care rendered in emergency situations. Knight v Limbert, 170 Mich App 410, 414; 427 NW2d 637 (1988). Defendants’ first encounter with the decedent was plainly an emergency situation. The emergency was not terminated under the statutory procedure. Therefore, §20737 was applicable and defendants are immune from liability. The trial court correctly granted defendants’ motion for summary disposition of this count.

ii. defendants’ acts did not constitute wilful MISCONDUCT

Plaintiff next claims that defendants’ action in removing the oxygen mask may "rise to the level of’ wilful misconduct and strip defendants of the [716]*716protection of MCL 333.20737; MSA 14.15(20737). We cannot agree.

It has been long established in Michigan law that mere negligence cannot be cast as "wilfulness” simply for the purposes of bringing a complaint. As the Supreme Court said over a century ago, in rejecting a negligence claim:

The allegation that defendant [acted] willfully . . . implies that the act was done with a set purpose to accomplish the results which followed the act. It involves more than negligence; it implies malice. [Montgomery v Muskegon Booming Co, 88 Mich 633, 644; 50 NW 729 (1891).]

Wilful means intentional. McKimmy v Conductors Protective Assurance Co, 253 Mich 521, 523; 235 NW 242 (1931). Wilfulness "transcends negligence—[it is] different in kind.” Gibbard v Cursan, 225 Mich 311, 320; 196 NW 398 (1923); Finkler v Zimmer, 258 Mich 336, 341; 241 NW 851 (1932). "The term 'wilful’ implies intention, but wilful misconduct lies somewhere between intentional conduct and ordinary negligence.” Serra v De-Maestri, 66 Mich App 171, 175; 238 NW2d 568 (1975) (child’s intentional tort). Or, in the words of another panel of this Court, "willful negligence is quasi-criminal and manifests an intentional disregard to another’s safety.” Papajesk v Chesapeake & O R Co, 14 Mich App 550, 556; 166 NW2d 46 (1968).

Plaintiff here, however, relies on authority construing the phrase "wilful and wanton misconduct.” We think the two differ significantly. "Wanton” conduct is "reckless,” conduct that "amounts to” wilful injury, see, e.g., LaCroix v Grand Trunk W R Co, 379 Mich 417, 424; 152 NW2d 656 (1967), but without intent. As the Supreme Court said in [717]*717discussing Gibbard, supra, conduct that shows "such indifference to whether harm will result as to be the equivalent of a willingness that it does” fits the "wanton” prong of the "wilful and wanton” standard. Burnett v City of Adrian, 414 Mich 448, 455; 326 NW2d 810 (1982).

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Pavlov v. Community Emergency Medical Service, Inc
491 N.W.2d 874 (Michigan Court of Appeals, 1992)

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Bluebook (online)
491 N.W.2d 874, 195 Mich. App. 711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pavlov-v-community-emergency-medical-service-inc-michctapp-1992.