If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

LISA YERKOVICH,

Plaintiff-Appellant,

UNPUBLISHED

August 22, 2024

v No. 367589

Macomb Circuit Court

HENRY FORD HOSPITAL CORPORATION, 

doing business as HENRY FORD MACOMB 

HOSPITAL, and TIM ANDERSON, R.N.,

LC No. 2023-000481-NO

Defendants-Appellees.

Before: MURRAY, P.J., and BORRELLO and MARIANI, JJ.

PER CURIAM.

Plaintiff appeals as of right an order granting defendants’ motion for summary disposition 

in this action arising out of an alleged assault and battery that occurred in a hospital. We affirm.

On February 8, 2023, plaintiff filed a complaint alleging defendant Tim Anderson, a 

registered nurse employed by defendant Hospital (defendant), “physically managed her to the floor 

and broke her necklace” after she refused to submit to a skin check following her admittance to 

Henry Ford Macomb Hospital for a suicide attempt. She further alleged that an investigation into 

the incident at the hospital concluded she “was not an imminent risk of serious or nonserious 

physical harm to [herself], staff, or others” and that Anderson applied unreasonable and excessive 

force which caused her to suffer significant injuries and damages. Plaintiff claimed negligence, 

gross negligence, and wanton and willful misconduct by defendant for improper training and 

negligent hiring of Anderson, and assault and battery against Anderson.

An investigation summary report was attached to the complaint. This report noted plaintiff 

filed a complaint that, if substantiated, would constitute a violation of plaintiff’s rights under MCL 

330.1722 of the Michigan Mental Health Code, MCL 330.1001 et seq. It also concluded that there 

was a preponderance of evidence to support that Anderson had used unreasonable force on 

plaintiff, and that plaintiff did not pose an imminent risk of harm to anyone.

Defendants, in lieu of filing an answer, filed a motion for summary disposition under MCR 

2.116(C)(8) and (C)(10). Defendants noted that, according to medical records, plaintiff was 
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admitted to the hospital after walking into traffic. The medical records stated that plaintiff refused 

to remove her necklace, refused to comply with a skin check, was agitated, and yelled at staff. 

Hospital staff reported plaintiff kicked female staff members, attempted to bite staff, and refused 

oral Ativan three times before she was physically held down for two minutes. During these two 

minutes, plaintiff was given a dose of Ativan and her necklace was removed. 

According to defendants, plaintiff’s claims sounded in medical malpractice rather than 

ordinary negligence, because the claims arose during the course of a professional relationship and 

raised a question of medical judgment. Specifically, defendants asserted that the force applied by 

Anderson must be assessed through expert testimony because a lay person would be unable to 

determine what constitutes unreasonable force when managing a combative patient who was 

admitted to the inpatient psychiatric unit. 

Attached to defendants’ summary disposition motion was a significant event report filed 

by a nurse employed by defendant, which stated that plaintiff refused to remove her necklace and 

cooperate with nurses for a skin assessment. The report noted that plaintiff refused treatment, was 

agitated, kicked staff members, attempted to bite staff members, and refused direction. These 

events led to plaintiff being restrained by Anderson for approximately two minutes. A second 

report by the doctor in charge of plaintiff’s case noted that plaintiff was belligerent and aggressive 

towards staff members. Defendants attached to their reply the Michigan Department of Health 

and Human Services (DHHS) policy on restraint and seclusion, which enumerated a number of 

situations that allow a nurse to restrain or hold a patient. Among these situations are when a patient 

is kicking a person, is acting in a violent or destructive manner, or is refusing treatment that could, 

as a result, lead to an emergency situation.

Plaintiff argued Anderson’s actions sounded in ordinary negligence as any lay juror would 

be able to make the determination that unreasonable and excessive force was used against her. 

Plaintiff also asserted that granting summary disposition under MCR 2.116(C)(10) would be 

premature as further discovery would support her claim, particularly because defendants had not 

yet produced surveillance video footage of the incident that she contended would show she was 

not posing a risk of harm to anyone.

The trial court issued a written opinion and order granting defendants’ motion for summary 

disposition under MCR 2.116(C)(10). The trial court stated plaintiff had not substantiated her 

claim that outstanding discovery, namely video of the incident, was germane to a proper legal 

characterization of the matter. The trial court noted there was no dispute that plaintiff’s interaction 

with Anderson was through a professional relationship, satisfying the first prong of the test to 

determine whether the claim was one of medical malpractice. The trial court held that whether 

proper management of plaintiff occurred, or whether Anderson properly implemented a physical 

hold or restraint of plaintiff to treat her, was a question of medical judgment that would require 

special medical knowledge not within the realm of an average juror. Therefore, the trial court 

concluded plaintiff’s complaint sounded in medical malpractice, and dismissed plaintiff’s 

complaint under MCR 2.116(C)(10).

The trial court granted summary disposition under MCR 2.116(C)(10), but “[i]n 

determining whether the nature of a claim is ordinary negligence or medical malpractice . . . a 

court does so under MCR 2.116(C)(7).” Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 
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419; 684 NW2d 864 (2004). This Court reviews summary disposition rulings de novo. Henry 

Ford Health Sys v Everest Nat’l Ins Co, 326 Mich App 398, 402; 927 NW2d 717 (2018). Under 

MCR 2.116(C)(7), this Court considers all documentary evidence submitted by the parties, 

accepting as true the contents of the complaint unless other appropriate documents specifically 

contradict it. Bryant, 471 Mich at 419. “Whether a claim sounds in ordinary negligence or medical 

malpractice is a question of law that is reviewed de novo.” Trowell v Providence Hosp & Med 

Ctrs, Inc, 502 Mich 509, 517; 918 NW2d 645 (2018).

There are two fundamental questions that must be answered in determining whether a claim 

sounds in ordinary negligence or medical malpractice: “(1) whether the claim pertains to an action 

that occurred within the course of a professional relationship; and (2) whether the claim raises 

questions of medical judgment beyond the realm of common knowledge and experience.” Bryant, 

471 Mich at 422. “If both these questions are answered in the affirmative, the action is subject to 

the procedural and substantive requirements that govern medical malpractice actions.” Id. 

A professional relationship sufficient to support a claim of medical malpractice 

exists in those cases in which a licensed health care professional, licensed health 

care facility, or the agents or employees of a licensed health care facility, were 

subject to a contractual duty that required that professional, that facility, or the agent 

or employees of that facility, to render professional health care services to the 

plaintiff. [Id. at 422-423.]

Plaintiff does not dispute that her claims arose out of a professional relationship, nor could she. 

Plaintiff arrived at the hospital to receive mental health care, and Anderson was a registered nurse 

employed by the hospital to provide such care.

Turning to the second question, “[i]f the reasonableness of the health care professional’s 

action can be evaluated by lay jurors, on the basis of their common knowledge and experience, it 

is ordinary negligence.” Id. at 423. If a health care professional’s actions can only be evaluated 

by a jury after having been presented with the standards of care pertaining to the medical issue by 

an expert, the claim is one of medical malpractice. Id. Whether the facts raise issues that are 

within a lay juror’s common knowledge and experience determines the type of claim presented. 

Id. at 423-424. “The ordinary layman does not know the type of supervision or monitoring that is 

required for psychiatric patients in a psychiatric ward.” Dorris v Detroit Osteopathic Hosp Corp, 

460 Mich 26, 47; 594 NW2d 455 (1999).

We hold that plaintiff’s claims sound in medical malpractice because they raise questions 

of medical judgment beyond common knowledge. It is undisputed that Anderson physically 

restrained plaintiff. But his decision to do so was a question of his medical judgment because 

plaintiff was at the hospital being treated for mental illness after attempting suicide. Lay jurors 

would not be familiar with the Mental Health Code or the DHHS restraint and seclusion policy. 

Nor would they have the common knowledge or experience to know how psychiatric patients

should be treated, regardless of whether they actually were being aggressive. And further 

discovery would not alter our conclusion. In Dorris, 460 Mich at 46, our Supreme Court cited 

with approval this Court’s decision in Waati v Marquette Gen Hosp, 122 Mich App 44, 49; 329 

NW2d 526 (1982), holding that “[w]hether a seizure patient requires constant medical attendance 

or restraints is an issue of medical management to be established by expert testimony.” Plaintiff 
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relies on an unpublished opinion that is neither binding nor applicable. Plaintiff also argues the 

trial court should not have ruled until defendants produced surveillance video footage of the 

incident, which would corroborate her version of the events. But the record already reflects that 

version of events, and further proofs of its truth are not necessary to determine whether plaintiff’s 

claim in this case sounds in ordinary negligence or medical malpractice. The trial court did not 

err in granting summary disposition to defendants.

Affirmed.

/s/ Christopher M. Murray

/s/ Stephen L. Borrello

/s/ Philip P. Mariani