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

ESTATE OF JOHN SWANZY by VICKI 

SWANZY, Personal Representative,

Plaintiff-Appellee,

FOR PUBLICATION

March 11, 2021

9:20 a.m.

v No. 351649

Kent Circuit Court

EDWARD J. KRYSHAK, M.D., LC No. 18-008023-NH

Defendant,

and

SPECTRUM HEALTH PRIMARY CARE 

PARTNERS, doing business as SPECTRUM 

HEALTH MEDICAL GROUP,

Defendant-Appellant.

Before: MURRAY, C.J., and M. J. KELLY and RICK, JJ.

M. J. KELLY, J.

Defendant, Spectrum Health Primary Care Partners, doing business as Spectrum Health 

Medical Group (Spectrum), appeals by leave granted1the trial court order granting partial 

summary disposition in favor of plaintiff Vicki Swanzy, the personal representative of the estate 

of the decedent, John Swanzy. At issue is whether the claims against Spectrum based upon the 

alleged negligence of its employee, Robin Zamarron, an unlicensed medical assistant, sounds in 

ordinary negligence or medical malpractice. For the reasons stated in this opinion we conclude 

that both claims sound in ordinary negligence, so we affirm.

 

1 Estate of Swanzy v Kryshak, unpublished order of the Court of Appeals, entered March 31, 2020 

(Docket No. 351649).
-2-

I. BASIC FACTS

In June 2016, the decedent was being treated for diabetes by defendant Edward J. Kryshak, 

M.D. At that time, Dr. Kryshak, an endocrinologist, was employed by Spectrum. According to 

the amended complaint, before June 2016, the decedent’s diabetes had been treated with Humulin 

R U-500 vials, but during a March 2016 hospitalization, his medication was changed and Dr. 

Kryshak opted to continue with the new medication. Subsequently, on June 23, 2016, the 

decedent’s blood sugars were in the 400s, so he and his wife called his primary care physician, 

who allegedly rerouted the call to Dr. Kryshak’s office at Spectrum. Thereafter, on June 24, 2016, 

a Friday, Dr. Kryshak prescribed the decedent Humulin R U-500 Kwikpen.

Because she believed that the Kwikpen would not be immediately available at the 

pharmacy, the decedent’s wife called Dr. Kryshak’s office to ask if she could use an old vial of 

Humulin R U-500. Plaintiff alleges that the decedent’s wife spoke on the phone with Zamarron, 

who “without caution or instruction” said “yes” to the substitution of insulin medications and 

directed her to administer “100 units.” The decedent’s wife then drew 100 units of Humulin R U500 from the vial and administered it to the decedent. Tragically, 100 units of Humulin R U-500 

vial is five times as much as 100 units of Humulin R U-500 Kwikpen, and the decedent fell into a 

hypoglycemic-induced coma and died.

On September 7, 2018, plaintiff filed a complaint against Spectrum and Dr. Kryshak. The 

complaint was amended on March 1, 2019 after Zamarron was identified as the medical assistant 

who allegedly gave incorrect dosage and medication-substitution advice. It is undisputed that (1) 

Zamarron was employed by Spectrum; (2) that in her role as a medical assistant she sometimes 

assisted Dr. Kryshak, including by answering phone calls, and (3) that, although she is a certified 

medical assistant, she is not licensed.

Count 1 of plaintiff’s amended complaint includes allegations that Spectrum is vicariously 

liable for Zamarron’s negligence in independently giving incorrect insulin substitution and dosage 

information to the decedent’s wife, and allegations that Spectrum is directly liable for negligently 

training and supervising Zamarron. In Count 3—which did not include a claim of direct negligence 

based on improper supervision—plaintiff alleged in the alternative a medical-malpractice claim 

against Spectrum, contending that the same conduct by Zamarron constituted a breach of the local 

standard of care for medical professionals. In February 2019, plaintiff moved for partial summary 

disposition under MCR 2.116(C)(9), arguing that Spectrum’s defense to Count 1 failed as a matter 

of law because the claim sounded in ordinary negligence, not medical malpractice. The trial court 

denied the motion without prejudice but stated that plaintiff could refile under MCR 2.116(C)(7).

Thereafter, plaintiff filed a renewed motion for partial summary disposition under MCR 

2.116(C)(7), (9), and (10), arguing that Count 1 of the complaint sounded in ordinary negligence

because Spectrum was not capable of being sued for medical malpractice. Plaintiff contended that 

under Kuznar v Raksha Corp, 481 Mich 169; 750 NW2d 121 (2008), the only individuals or 

entities capable of medical malpractice are (1) licensed health care professionals, (2) licensed 

health facilities or agencies, or (3) the employees or agents of a licensed health facility or agency. 

Thus, because Spectrum admitted that its medical assistants (including Zamarron) were not 

licensed health care professionals and that it was not a licensed health facility or agency, plaintiff 

argued there was no entity capable of committing medical malpractice so the claim necessarily 
-3-

sounded in ordinary negligence. In response, Spectrum asserted that under the definition of 

licensed health care professional in MCL 600.5838a(1)(b), it could be held vicariously liable for 

the negligent administration of professional services by its employees or agents, which included 

Zamarron, who was an agent of Dr. Kryshak, who was, in turn, licensed under section 15 of the 

Public Health Code, MCL 333.1101 et seq. Spectrum relied on Potter v McCleary, 484 Mich 397, 

402-403; 774 NW2d 1 (2009), which held that a professional corporation could be held vicariously 

liable for the medical malpractice of a licensed health care professional that it employed. Spectrum

also relied heavily on Estate of Flie v Oakwood Healthcare, Inc, unpublished per curiam opinion 

of the Court of Appeals, issued December 12, 2017 (Docket No. 333389). In Flie, this Court held 

that whether a negligent actor was licensed or not was “not necessarily relevant” to determine 

whether a claim sounded in ordinary negligence or medical malpractice. Id. at 7. “Rather, if an 

employee is one that provides professional services through a [professional corporation], then the 

actions of the [professional corporation], and therefore of the employee, are treated as the actions 

of a licensed health care provider, regardless of the employee’s licensure.” Id. The trial court, 

however, determined that Potter’s holding, and Flie’s holding by extension, only applied to 

professional corporations, whereas Spectrum was a domestic nonprofit corporation. The court, 

therefore, granted partial summary disposition in favor of plaintiff.

II. SUMMARY DISPOSITION

A. STANDARD OF REVIEW

Spectrum argues that the trial court erred by granting plaintiff’s motion for partial summary 

disposition. We review de novo a trial court’s decision on a motion for summary disposition. 

Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 

618 (2009). Likewise, we review de novo whether the nature of a claim asserted sounds in ordinary 

negligence or medical malpractice. Bryant v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411, 

419; 684 NW2d 864 (2004). Because such claims are appropriately raised under MCR 2.116(C)(7) 

we must consider “all documentary evidence submitted by the parties, accepting as true the 

contents of the complaint unless affidavits or other appropriate documents specifically contradict 

it.” Id. Our review of a trial court’s interpretation of a statute is also de novo. Kuznar, 481 Mich 

at 176. A de-novo review means that we “review the legal issue independently, without deference 

to the lower court.” In re Reliability Plans of Electric Utilities for 2017-2021, 505 Mich 97, 118-

119; 949 NW2d 73 (2020).

B. ANALYSIS

When determining whether a claim sounds in ordinary negligence or medical malpractice, 

a reviewing court must determine: “(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 exists if a person or an entity capable of committing medical malpractice was subject 

to a contractual duty to render professional health-care services to the plaintiff.” Kuznar, 481 Mich 

at 177. Because “[a] malpractice action cannot accrue against someone who, or something that, is 

incapable of malpractice[,]” Adkins v Annapolis Hosp, 420 Mich 87, 95; 360 NW2d 150 (1984), a 
-4-

determination of whether a person or entity is capable of malpractice “is a necessary condition for 

bringing a malpractice suit.” Randall v Mich High Sch Athletic Ass’n, ___ Mich App ___, ___; 

___ NW2d ___ (2020) (Docket No. 346476); slip op at 12; see also Bryant, 471 Mich at 420 (“The 

first issue in any purported medical malpractice case concerns whether it is being brought against 

someone who, or an entity that, is capable of malpractice.”); and LaFave v Alliance Healthcare 

Srvs, Inc, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 345986); slip op at ___ 

(accord).

“MCL 600.5838a(1) is an accrual statute that indicates when a medical malpractice cause 

of action accrues.” Bryant, 471 Mich at 420. It provides:

(1) For purposes of this act, a claim based on the medical malpractice of a 

person or entity who is or who holds himself or herself out to be a licensed health 

care professional, licensed health facility or agency, or an employee or agent of a 

licensed health facility or agency who is engaging in or otherwise assisting in 

medical care and treatment, whether or not the licensed health care professional, 

licensed health facility or agency, or their employee or agent is engaged in the 

practice of the health profession in a sole proprietorship, partnership, professional 

corporation, or other business entity, accrues at the time of the act or omission that 

is the basis for the claim of medical malpractice, regardless of the time the plaintiff 

discovers or otherwise has knowledge of the claim. As used in this subsection:

(a) “Licensed health facility or agency” means a health facility or agency 

licensed under article 17 of the public health code, Act No. 368 of the Public Acts 

of 1978, being sections 333.20101 to 333.22260 of the Michigan Compiled Laws.

(b) “Licensed health care professional” means an individual licensed or 

registered under article 15 of the public health code, Act No. 368 of the Public Acts 

of 1978, being sections 333.16101 to 333.18838 of the Michigan Compiled Laws, 

and engaged in the practice of his or her health profession in a sole proprietorship, 

partnership, professional corporation, or other business entity. However, licensed 

health care professional does not include a sanitarian or a veterinarian.

MCL 600.5838a(1) expands “the traditional common-law list of those who are subject to medical 

malpractice actions.” Bryant, 471 Mich at 420.

2

 Thus, although “[u]nder the common law only 

physicians and surgeons were potentially liable for medical malpractice,” the category of persons 

 

2 The Bryant Court cautioned that although MCL 600.5838a(1) expanded the category of persons 

or entities that may be subject to a medical malpractice action, “it does not define what constitutes 

a medical malpractice action.” Bryant, 471 Mich at 420-421. Therefore, if a defendant falls within 

the category of persons or entities who are capable of medical malpractice, it only means that the 

plaintiff’s claim may possibly sound in medical malpractice. Id. at 421. See also Potter, 484 Mich 

at 416 n 25 (recognizing that satisfying the first prong of a medical-malpractice action “requires 

more than mere inclusion within the Public Health Code lists,” but also noting that “inclusion 

within either § 5838a or the Public Health Code lists is a necessary predicate to an action sounding 

in medical malpractice.”).
-5-

and entities that can be held liable for medical malpractice now encompasses “a person or entity 

who is or who holds himself or herself out to be a licensed health care professional, licensed health 

facility or agency, or an employee or agent of a licensed health facility or agency . . . .” Kuznar, 

481 Mich at 177, quoting MCL 600.5838a(1). As explained by our Supreme Court in Potter, “only 

those providers and facilities covered by § 5838a can meet the professional relationship prong of 

the test” to determine whether a claim sounds in ordinary negligence or medical malpractice. 

Potter, 484 Mich at 415.

The issue on appeal is whether Spectrum, a nonprofit corporation, is capable of medical 

malpractice. At the outset, it is undisputed that Spectrum does not qualify as a licensed health care 

facility or agency as that term is defined in MCL 600.5838a(1)(a). Further, there is nothing on the 

record to suggest that Spectrum is an employee or agent of a licensed health care facility or agency. 

Consequently, it can only be capable of malpractice if it qualifies as a licensed health care 

professional under MCL 600.5838a(1)(b). To answer that question, we turn to our Supreme 

Court’s decision in Potter.

The plaintiff in Potter brought a claim against a professional corporation based solely on 

the professional corporation’s vicarious liability for the “professional services of its licensed health 

care provider-employee,” a physician. Potter, 484 Mich at 402-403. As part of its analysis, our 

Supreme Court examined whether a professional corporation was “an entity against which a 

medical malpractice action could be asserted.” Id. at 417-418. The Court first concluded that it 

was unnecessary to determine whether a professional corporation was a licensed health care 

facility or agency under § 5838a(1)(a) “because the plain language of § 600.5838a, as amended 

effective April 1, 1994, expressly includes professional corporations within its definitional 

section.” Id. at 417. The Court reasoned that “[t]he specific addition of professional corporations 

to § 5838a was a clear statement by the Legislature that it intended a [professional corporation] to 

be an entity against which a medical malpractice action could be asserted.” Id. at 417-418.

Second, the Court recognized that “the placement of the reference to professional 

corporations within § 5838a(1)(b) (defining health care professionals), rather than within § 

5838a(1)(a) (defining health facilities), stands as a recognition of the nature of services as 

delineated in the Professional Service Corporation Act, MCL 450.225.” Id. at 418. In that regard, 

the Court recognized that under MCL 450.225 (now MCL 450.1285(1)),3a professional 

corporation “can only render professional services through its employee or agents who are licensed 

or legally authorized to render the professional services.” Id. at 412. The Court explained that the

language in MCL 450.225 stood “as a legislative recognition that when a [professional 

corporation] renders professional services, it is inexorably linked to the licensed health care 

provider.” Id. Thus, the professional corporation “and the health care provider are treated as the 

same entity when professional services are involved.” Id. Accordingly, the Court held that 

“[w]here the services provided are professional services rendered by a licensed health care 

provider, any claim challenging those services as being negligent sound in medical malpractice, 

and the statutes governing medical malpractice apply.” Id. (emphasis added). But if the services 

are not professional services as defined in MCL 450.225, then “the claim would not be subject to 

 

3 See 2012 PA 569.
-6-

the medical malpractice requirements because those claims sound in ordinary negligence.” Id. 

Because the professional services provided by the professional corporation in Potter were rendered 

by a licensed health care provider, the Potter Court concluded that the professional corporation 

was an entity capable of being sued in medical malpractice. Id. at 402.

Applying Potter to this case, we must first determine whether a nonprofit corporation is 

included in the definitional section of MCL 600.5838a(1). As with all statutory interpretation, we 

turn to the statutory language to determine the Legislature’s intent. Potter, 484 Mich at 410. Here, 

§ 5838a(1)(b) includes a list of business entities through which a licensed health care professional 

can engage in his or her health profession: “a sole proprietorship, partnership, professional 

corporation, or other business entity.” When interpreting a statute, “words grouped in a list should 

be given related meaning.” Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 533; 697 NW2d 

895 (2005) (quotation marks and citation omitted). In that regard, the phrase “other business 

entity” is broad and encompasses other business entities through which a licensed health care 

professional can engage in his or her health profession. A nonprofit corporation is a business 

entity. See Black’s Law Dictionary (11th ed) (defining a corporation as “[a]n entity (usu. a 

business) having authority under law to act as a single person distinct from the shareholders who 

own it and having rights to issue stock and exist indefinitely . . . .”). Further, it is different in kind 

or nature from sole proprietorships, partnerships, and professional corporations. Thus, it qualifies 

as an “other business entity.”

 Having determined that a nonprofit corporation is included in the definitional section, we 

next must determine whether it can render professional services through a licensed health care 

professional. MCL 450.2261(6) provides that a domestic nonprofit corporation “may be formed . 

. . for the purpose of providing services in a learned profession and may employ and enter into 

other arrangements with duly licensed or authorized individuals who shall furnish those services 

on behalf of the corporation.”4 MCL 450.2261(6). Subject to a few exceptions that are not relevant 

in this case, “any duly licensed or authorized individual who is employed by a corporation 

described in subsection (6) is personally and fully liable and accountable for any negligent or 

wrongful acts or misconduct committed by him or her, or by any individual under his or her direct 

supervision and control, while rendering professional services on behalf of the corporation to the 

person for whom those professional services were being rendered.” MCL 450.2261(7). Therefore, 

we conclude that, like a professional corporation, a nonprofit corporation can provide professional 

services through any licensed health care providers that it employs. Consequently, under 

§ 5838a(1)(b), as interpreted by our Supreme Court in Potter, a plaintiff may maintain a claim 

against a nonprofit corporation based solely on the nonprofit corporation’s vicarious liability for 

the professional services of its licensed health care provider-employees. See Potter, 484 Mich 

at 402-403.

 

4

In turn, MCL 450.2109(3) defines the “services of a learned profession” as “services provided 

by a dentist, an osteopathic physician, a physician, a surgeon, a doctor of divinity or other clergy, 

or an attorney at law.”
-7-

This theory of liability is, in fact, the basis for Count 2 of plaintiff’s amended complaint, 

which alleges that Spectrum is vicariously liable for Dr. Kryshak’s professional negligence. In 

that regard, MCL 600.5838a(1)(b) treats Spectrum and Dr. Kryshak (a licensed health care 

professional) as “the same entity when professional services are involved.” Count 1 of plaintiff’s 

amended complaint, however, does not include any allegation that Spectrum is vicariously liable 

for the professional negligence of any individual who qualifies as a health care professional under 

§ 5838a(1)(b). Rather, plaintiff seeks to hold Spectrum vicariously liable for the alleged 

negligence of Zamarron, an unlicensed medical assistant, and directly liable for Spectrum’s own 

negligence in failing to properly train that unlicensed medical assistant. We address each in turn.

An institutional defendant may be held either (1) directly liable through claims of negligent 

supervision, selection, and retention of staff, or (2) vicariously liable for the alleged negligence of 

its agents and employees. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 11; 651 NW2d 356 

(2002). Here, Spectrum is not capable of being directly sued for professional malpractice under 

MCL 600.5838a(1)(a) and it can only be held vicariously liable under MCL 600.5838a(1)(b). 

Consequently, Spectrum is incapable of independently committing medical malpractice, so 

plaintiff’s direct-liability claims for negligent training, supervision, selection, and retention of staff 

must necessarily sound in ordinary negligence. See Kuznar, 481 Mich at 172 (holding that a 

pharmacy cannot ever be directly liable for medical malpractice because it is not a licensed health 

care facility or agency as that term is defined in MCL 600.5838a(1)(a)).

We must next consider whether Spectrum can be held vicariously liable for the alleged 

negligence of an employee or agent who is not a licensed health care professional. Four cases are 

on point. First, in Kuznar, our Supreme Court held that the plaintiff’s claim alleging vicarious 

liability against a pharmacy for the alleged negligence of its nonpharmacist employee sounded in 

ordinary negligence, because the employee was neither the employee or agent of a licensed health 

care facility or agency nor a licensed health care professional. Kuznar, 481 Mich at 172. Second, 

in Potter, the Supreme Court found the professional corporation capable of being held vicariously 

liable for the act of its employee because that employee both rendered professional services and 

was a licensed health care professional. Potter, 484 Mich at 402-403. In addition, in Potter, our 

Supreme Court expressly stated that “when a claim asserted against a [professional corporation] 

involves the actions of an employee or agent who is unlicensed or not rendering professional 

services . . . such a claim would sound in ordinary negligence.” Id. at 403 n 4 (emphasis added). 

Third, in LaFave, this Court held that the plaintiff’s claim against an MRI provider was one for 

ordinary negligence, not medical malpractice because the MRI provider was not a licensed health 

care facility or agency and because its allegedly negligent employee, an MRI technician, was not 

a licensed health care professional. LaFave, ___ Mich App at ___; slip op at 3-5. Fourth and 

finally, in Sabbagh v Hamilton Psychological Srvs, PLC, ___ Mich App ___, ___; ___ NW2d ___ 

(2019) (Docket No. 342150); slip op at 6, this Court held that the plaintiff could not maintain a 

direct medical malpractice claim against the defendants, a psychological practice and a human 

resources company, because neither were a licensed health care facility. Further, although their 

employees were licensed health care professionals capable of medical malpractice, id., because the 

claims against the licensed employees were time-barred, the psychological practice and the human 

resources company could not be held vicariously liable for their negligence, id. at slip op 9-10. 

Common in each case is that the institutional defendant—regardless of the form the business entity 

took—could only be held vicariously liable for the actions of the licensed health care professionals 

employed by the institutional defendant.
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Kuznar, Potter, LaFave, and Sabbagh stand for the proposition that an institutional 

defendant is only capable of being held vicariously liable for the professional malpractice of its 

employees who are licensed health care providers under MCL 600.5838a(1)(b). This 

interpretation is in line with the plain language of MCL 600.5838a(1), which expressly allows for 

a medical malpractice claim to accrue against the employees or agents of a licensed health care 

facility or agency, but does not similarly provide that such a claim can accrue against the 

employees or agents of a licensed health care professional under § 5838a(1)(b). See Danse Corp 

v City of Madison, 466 Mich 175, 182; 644NW2d 721 (2002) (“Where the statutory language is 

unambiguous, the plain meaning reflects the Legislature’s intent and the statute must be applied 

as written. No further construction is necessary or allowed to expand what the Legislature clearly 

intended to cover.”). Accordingly, because Spectrum’s employee, Zamarron is not a licensed 

health care professional under MCL 600.5838a(1)(b), plaintiff’s claim that Spectrum is vicariously 

liable for the actions of Zamarron sounds in ordinary negligence, not medical malpractice.

Spectrum argues that we should apply this Court’s unpublished decision in Flie, which 

discounted the necessity of the negligent employee being a licensed health care professional and 

stressed that instead, the key inquiry was whether the allegedly negligent employee was or was 

not providing professional services. Flie, unpub op at 5-7. However, “[a]n unpublished opinion 

is not precedentially binding under the rule of stare decisis,” MCR 7.215(C)(1). Nor do we find 

Flie persuasive in light of the above published opinions from both our Supreme Court and this 

Court recognizing that a business entity is capable of being held vicariously liable for the medical 

malpractice of its licensed health care professionals, but not its employees who are unlicensed. 

Additionally, we note that in Flie, although there was a discussion regarding the licensure status 

of the medical assistant, the plaintiff sought to hold the professional corporation vicariously liable 

for actions of a physician it employed, not for the actions of the unlicensed medical assistant. Id., 

unpub op at 2. Thus, this Court was not tasked with evaluating whether a professional corporation 

could be held vicariously liable based solely upon its status as the employer of an employee who 

was not a licensed health care professional under MCL 600.5838a(1)(b). For those reasons, we 

decline to apply Flie here.

In sum, because a claim for medical malpractice cannot accrue against Spectrum either for 

its direct negligence in failing to train Zamarron or its vicarious liability for her allegedly negligent 

actions, plaintiff’s claims raised in Count 1 of her complaint cannot sound in medical malpractice. 

The trial court did not err by granting partial summary disposition.

Affirmed. Plaintiff may tax costs as the prevailing party. MCR 7.219(A).

/s/ Michael J. Kelly

/s/ Christopher M. Murray

/s/ Michelle M. Rick