**_______________________________** Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

**FILED JULY 30, 2004 DENISE BRYANT, Personal Representative**  **of the Estate of Catherine Hunt, Deceased, Plaintiff-Appellee,**  **v Nos. 121723, 121724 OAKPOINTE VILLA NURSING CENTRE,**  **Defendant-Appellant.**

**BEFORE THE ENTIRE BENCH MARKMAN, J.**  **In this case, plaintiff, Denise Bryant, personal representative of the estate of her deceased aunt,**  **Catherine Hunt, alleges that defendant Oakpointe Villa Nursing Centre, Inc. (Oakpointe), is liable for the death**  **of her aunt, who died from positional asphyxiation while in defendant’s care. Plaintiff has alleged that defendant was**  **negligent in four distinct ways: (1) by failing to provide “an accident-free environment” for her aunt; (2) by failing**  **to train its Certified Evaluated Nursing Assistants (CENAs) to recognize and counter the risk of positional**  **asphyxiation posed by bed rails; (3) by failing to take adequate corrective measures after finding Ms. Hunt** **entangled in her bedding on the day before her asphyxiation; and (4) by failing to inspect plaintiff’s bed**  **arrangements to ensure “that the risk of positional asphyxia did not exist for plaintiff’s decedent.” We are**  **required in this appeal to determine whether each claim sounds in medical malpractice or ordinary negligence.**  **Plaintiff’s “accident-free environment” claim is one of strict liability; because medical malpractice requires**  **proof of negligence, this claim is not legally cognizable. Moreover, under the standards set forth in**  Dorris v Detroit Osteopathic Hosp Corp **, 460 Mich 26; 594 NW2d 455 (1999), plaintiff’s failure-to-train and failure-to-inspect claims**  **sound in medical malpractice. Plaintiff’s claim that defendant failed to take action after its employees found**  **Ms. Hunt entangled in her bedding on the day before her asphyxiation, however, sounds in ordinary negligence.**  **We reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for proceedings**  **on plaintiff’s claim of ordinary negligence and, given the equities in this case, on her two medical malpractice**  **claims as well.**

**I. BACKGROUND**  **Plaintiff’s decedent, Catherine Hunt, was a resident**

2**of Oakpointe. She suffered from multi-infarct dementia 1**  **and diabetes, had suffered several strokes, and required**  **twenty-four-hour-a-day care for all her needs, including locomotion, dressing, eating, toileting, and bathing.**  **Hunt’s condition impaired her judgment and reasoning ability and, in turn, caused cerebral atrophy. Hunt had no**  **control over her locomotive skills and was prone to sliding about uncontrollably and, therefore, she was at risk for**  **suffocation by “positional asphyxia.” 2**  **Because Hunt had no control over her locomotive skills, Dr. Donald Dreyfuss, defendant’s medical director,** 

**1 According to Tabers Cyclopedic Medical Dictionary**  **(2002), “dementia” constitutes progressive, irreversible decline in mental**  **function, marked by memory impairment and, often, deficits in reasoning, judgment, abstract**  **thought, registration, comprehension, learning, task execution, and use of language. The**  **cognitive impairments diminish a person’s social, occupational, and intellectual abilities.**  **“Multi-infarct dementia” constitutes [d]ementia resulting from multiple small**  **strokes. . . . The cognitive deficits of multi**   ** infarct dementia appear suddenly, in “step-wise”** **fashion. The disease is . . . most common in patients with hypertension, diabetes mellitus, or**  **other risk factors for generalized atherosclerosis. Brain imaging in patients with**  **this form of dementia shows multiple lacunar infarctions. [**  Id **.]**

**2 “Positional asphyxia refers to suffocation that**  **results when someone’s position prevents them from breathing properly. See <http://en.wikipedia.org/wiki/**  **Positional_asphyxia> (accessed July 27, 2004).**

3**authorized the use of various physical restraints. These included bed rails to keep Hunt from sliding out of the**  **bed, as well as a restraining vest that kept her from moving her arms, thereby impeding her ability to slide.**  **The authorized restraints also incl uded wedges or bumper**  **pads that were placed on the outer edge of the mattress to keep her from hurting herself by striking, or entangling**  **hereself in, the rails. The use of restraints of this sort is regulated by the state of Michigan to prevent overuse**  **and excessive patient confinement, and must be authorized by a physician.**  **3 Several persons cared for Hunt on a twenty-four-hour**  **basis, including registered nurses, practical nurses, and nursing assistants (CENAs). On March 1, 1997, nursing**  **assistants Monee Olds and Valerie Roundtree noticed that**  **Hunt was lying in her bed very close to the bed rails and**

**3 MCL 333.20201(2)(l) specifies, with regard to**  **restraints generally, that “[a] patient or resident is entitled to be free from mental and physical abuse and from**  **physical and chemical restraints, except those restraints authorized in writing by the attending physician for a**  **specified and limited time . . . .” Regarding bed rails in particular, MCL 333.21734(1) provides, in relevant part:**  **A nursing home shall provide bed rails to a resident only upon receipt of a signed consent**  **form authorizing bed rail use and a written order from the resident's attending physician that**  **contains statements and determinations regarding medical symptoms and that specifies the**  **circumstances under which bed rails are to be used.** 

4**was tangled in her restraining vest, gown, and bedsheets. They untangled her from her vest and gown and attempted to**  **position bed wedges onto decedent’s bed to prevent her from slipping into a gap that existed between the mattress and**  **bed rail. The nursing assistants testified that they**  **informed their supervisor that the wedges were not sticking properly and kept falling off, and that better care should**  **be taken in that regard for all patients or else the patients could hurt or even fatally injure themselves.**  **4 The next day, March 2, 1997, Hunt slipped between the**  **rails of her bed and was in larg e part out of the bed with**  **the lower half of her body on the floor but her head and neck under the bed side rail and her neck wedged in the gap**  **between the rail and the mattress, thus preventing her from breathing. When Hunt was extricated, she was transported**  **to a hospital. There was no recovery and, on March 4, 1997, she was taken off life support and died. The cause**  **of her death was listed as positional asphyxia. Plaintiff filed a suit alleging ordinary negligence**  **against defendant in the Wayne Circuit Court in April 1998. In May 1998, defendant moved for summary disposition**  **pursuant to MCR 2.116(C)(4) and (C)(8), on the basis that plaintiff’s claims sounded in medical malpractice rather** 

**4 Whether the CENAs actually made the report, as**  **plaintiff notes in its brief to this Court, is in dispute.**

5**than ordinary negligence. In August 1998, Judge Pamela Harwood ruled that plaintiff’s complaint sounded in**  **ordinary negligence and allowed the case to proceed. In January 1999, Judge Harwood recused herself from the case**  **and it was reassigned to Judge John Murphy. In June 1999, plaintiff filed a first amended**  **complaint still alleging ordinary negligence. It contained three counts. These were, first, ordinary negligence “by**  **and through” defendant’s employees generally; second, negligent infliction of emotional distress; and third,**  **gross negligence by defendant’s employees generally. Plaintiff’s “ordinary negligence” count—the claim at issue**  **in this appeal—contained four distinct claims against defendant:**  **(a) Negligently and recklessly failing to**  **assure that plaintiff’s decedent was provided with an accident-free environment;**  **(b) Negligently and recklessly failing to**  **train CENAs to assess the risk of positional asphyxia by plaintiff’s decedent despite having**  **received specific warnings by the United States Food and Drug Administration about the dangers of**  **death caused by positional asphyxia in bed rails; (c)**  **Negligently and recklessly failing to take steps to protect plaintiff’s decedent when**  **she was, in fact, discovered on March 1 entangled between the bed rails and the mattress;**  **(d) Negligently and recklessly failing to**  **inspect the beds, bed frames and mattresses to assure that the risk of positional asphyxia did**  **not exist for plaintiff’s decedent.**

6**In October 1999, defendant again moved for summary disposition on the basis that plaintiff’s new claims of**  **ordinary negligence, in fact, sounded in medical malpractice. Unlike Judge Harwood, Judge Murphy, in June**  **2000, agreed with defendant and ruled that plaintiff’s “ordinary negligence” count soun**  **ded in medical malpractice. 5**  **In addition, he ruled that, although ordinary negligence**  **claims could be brought against the nursing assistants individually, these claims had not properly been pleaded.**  **The court therefore dismissed the complaint in its entirety without prejudice.**  **Plaintiff appealed the dismissal to the Court of Appeals. Meanwhile, however, seeking to comply with Judge**  **Murphy’s decision, plaintiff, in August 2000, filed a notice of intent to sue in medical malpractice pursuant to**  **MCL 600.2912b and, in February 2001, refiled her case, filing a second amended complaint alleging medical**  **malpractice. Defendant again brought a motion to dismiss pursuant to 2.116(C)(7), on the basis that the two-year**  **medical malpractice period of limitations had expired. Judge Murphy, in June 2001, disagreed and held that the**  **period of limitations was tolled when Judge Harwood issued**

**5 The trial court found that this case was**  **indistinguishable from** Starr v Providence Hosp **, 109 Mich App 762; 312 NW2d 152 (1981), and**  Waatti v Marquette Gen Hosp, Inc **, 122 Mich App 44; 329 NW2d 526 (1982).**

7**her August 1998 decision until that decision was reversed by himself in June 2000. Defendant appealed this decision**  **to the Court of Appeals. The Court of Appeals consolidated plaintiff’s appeal**  **from Judge Murphy’s June 2000 decision with defendant’s appeal from his June 2001 decision. The Court of Appeals**  **held in plaintiff’s favor, finding that the case sounded in ordinary negligence.**  **6 The Court recognized that, having so**  **held, the issue regarding the tolling of the period of limitations was moot. However, the Court concluded, in**  **dictum, that if plaintiff’s claim had sounded in medical malpractice,**  Scarsella v Pollak, **461 Mich 547; 607 NW2d 711 (2000), would require its dismissal with prejudice.**  **Defendant appealed the Court of Appeals decision that plaintiff’s case sounded in ordinary negligence, and we**  **granted leave to appeal in this case and in** Lawrence v Battle Creek Health Systems **, 468 Mich 944 (2003), ordering that the two cases be argued and submitted together.**  **7**

**II. S**  **TANDARD OF REVIEW In determining whether the nature of a claim is**  **ordinary negligence or medical malpractice, as well as whether such claim is barred because of the statute of** 

**6 Unpublished opinion per curiam, issued May 21, 2002**  **(Docket Nos. 228972, 234992).**

**7 468 Mich 943 (2003).** 

8**limitations, a court does so under MCR 2.116(C)(7). We review such claims de novo.**  Fane v Detroit Library Comm **, 465 Mich 68, 74; 631 NW2d 678 (2001). In making a decision**  **under MCR 2.116(C)(7), we 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.**  Fane **,** supra **; see also MCR 2.116(G)(5)-(6).** 

**III. M**  **EDICAL MALPRACTICE VS .**  **ORDINARY NEGLIGENCE 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. In**  **addressing this issue, defendant argues that, because MCL 600.5838a refers to “the medical malpractice of . . . an**  **employee or agent of a licensed health facility or agency who is engaging in or otherwise assisting in medical care**  **and treatment,” plaintiff’s claim sounds in medical malpractice for the simple**  **reason that it alleges negligence committed by an employee of a licensed health**  **care facility who was engaging in medical care and treatment. In response, we point out that MCL 600.5838a(1)**  **is an accrual statute that indicates when a medical malpractice cause of action accrues. Additionally, as we**  **noted in** Adkins v Annapolis Hosp **, 420 Mich 87, 94-95; 360 NW2d 150 (1984), this statute likewise expands the** 

9**traditional common-law list of those who are subject to medical malpractice actions.**  **8 However, we caution that,**  **although § 5838a expands the category of who may be subject to a medical malpractice action, it does not define what**  **constitutes a medical malpractice action. 9**  **The fact that an**

**8 In construing the former MCL 600.5838, in which, in**  **the context of an accrual statute, the Legislature listed a wide array of specific health care professionals and**  **entities who could potentially be subject to medical malpractice, we stated:**  **While it is true that [the former] RJA § 5838 is an accrual provision, not a definitional**  **section, there can be no other meaning of this language other than that [those health care**  **occupations listed in the former § 5838] may be guilty of malpractice. Otherwise, there would be**  **no reason to list those occupations in an accrual section. A malpractice action cannot accrue**  **against someone who, or something that, is incapable of malpractice.**  **. . . [The former § 5838] evidenced a legislative intent to alter t**  **he common law and subject other health professionals [as opposed to**  **physicians and surgeons only] to potential liability for malpractice. [**  Adkins, **420 Mich 94**  **- 95.]**  **The former § 5838 was amended by 1986 PA 178, as a result of which, the accrual provision**  **relevant to medical malpractice actions was reenacted under the current § 5838a. Instead of**  **listing specific health care professionals and entities subject to medical malpractice, the**  **current § 5838a refers generally to 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 . . . .”** 

**9 Perhaps complicating an understanding of this body of**  **law is this Court’s unanimous peremptory order in 1998 in** Regalski v Cardiology Assoc **,** PC, **459 Mich 891 (1998). In**

10**employee of a licensed health care facility was engaging in medical care at the time the alleged negligence occurred**  **means that the plaintiff’s claim may** possibly **sound in medical malpractice; it does not mean that the plaintiff’s**  **claim** certainly **sounds in medical malpractice. The second issue concerns wh**  **ether the alleged claim sounds in medical malpractice. A medical malpractice claim**  **is distinguished by two defining characteristics. First, medical malpractice can occur only “‘within the course of a**  Regalski **, we were p resented with a case in which the Court**  **of Appeals had held that the plaintiff’s claim that the defendant’s medical technician was negligent in assisting**  **the patient’s movement out of a wheelchair and onto the examining table was a matter of ordinary negligence. We**  **reversed and concluded that this was not ordinary**  **negligence but medical malpractice. While the facts of that case were only briefly stated,**  **we interpret this Court’s** Regalski **holding to mean that the facts in that case led to the conclusion that the**  **particular assistance rendered to that patient involved a professional relationship and implicated a medical**  **judgment. Even in the wake of**  Regalski, **then, injuries incurred while a patient is being transferred from a wheelchair to**  **an examining table (to take one example) may or may not implicate professional judgment. The court must examine**  **the particular factual setting of the plaintiff’s claim in order to determine whether the circumstances—for example,**  **the medical condition of the plaintiff or the sophistication required to safely effect the move—implicate**  **medical judgment as explained in** Dorris **. In citing the medical malpractice accrual statute, MCL**  **600.5838a(1), in** Regalski **, we have caused some, including defendant herein, to venture that we were holding that this**  **statute can also be understood as defining medical malpractice. This understanding is incorrect for the**  **reasons that we have stated.**

11**professional relationship.’”** Dorris **,** supra **at 45 (citation omitted). Second, claims of medical malpractice**  **necessarily “raise questions involving medical judgment.”** Id **. at 46. Claims of ordinary negligence, by contrast, “raise issues that are within the common knowledge and**  **experience of the [fact-finder].”** Id **. Therefore, a court must ask two fundamental questions 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. If**  **both these questions are answered in the affirmative, the action is subject to the procedural and substantive**  **requirements that govern medical malpractice actions. In considering whether there has been a professional**  **relationship between the plaintiff and the defendant,** Dorris **is central to our analysis. In that case, this Court held: “‘The key to a medical malpractice claim is**  **whether it is alleged that the negligence occurred within the course of a professional relationship.’”**  Id. **at 45, quoting**  Bronson v Sisters of Mercy Health Corp **, 175 Mich App 647, 652; 438 NW2d 276 (1989). A professional**  **relationship sufficient to support a claim of medical malpractice exists in those cases in which a licensed** 

12**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 agents or employees of**  **that facility, to render professional health care services to the plaintiff. See**  Dyer v Trachtman **, 470 Mich 45; 679 NW2d 311 (2004);**  **10** Delahunt v Finton, **244 Mich 226, 230; 221 NW 168 (1928) (“Malpractice, in its ordinary sense, is the**  **negligent performance by a physician or surgeon of the duties devolved and incumbent upon him on account of his**  **contractual relations with his patient.”); 11**  **see also** Hill v Kokosky **, 186 Mich App 300, 302-303; 463 NW2d 265 (1990);** Oja v Kin, **229 Mich App 184, 187; 581 NW2d 739 (1998). After ascertaining that the professional relationship**  **test is met, the next step is determining whether the claim raises questions of medical judgment requiring expert** 

**10 We held in**  Dyer **that in an action for negligence in performing an independent medical examination (IME), the**  **plaintiff’s claim sounded in medical malpractice rather than ordinary negligence, but that a physician incurred**  **only a limited form of medical malpractice liability in performing the IME.**  Id **. This conclusion was based on the contractual relationship between the parties.** 

**11 When the**  Delahunt **decision was rendered in 1928,**  **only physicians and surgeons could be sued in medical malpractice. See, for example,**  Kambas v St Joseph’s Mercy Hosp of Detroit, **389 Mich 249; 205 NW 2d 431 (1973). As**  **observed in n 8, the Legislature has since expanded the common-law list of those who potentially may be subject to**  **medical malpractice liability. See MCL 600.5838a;** Adkins, **420 Mich 94-95.**

13**testimony or, on the other hand, whether it alleges facts within the realm of a jury’s common knowledge and**  **experience. If the reasonableness of the health care professionals’ action can be evaluated by lay jurors, on**  **the basis of their common knowledge and experience, it is ordinary negligence. If, on the other hand, the**  **reasonableness of the action can be evaluated by a jury only after having been presented the standards of care**  **pertaining to the medical issue before the jury explained by experts, a medical malpractice claim is involved. As we**  **stated in** Dorris **: The determination whether a claim will be**  **held to the standards of proof and procedural requirements of a medical malpractice claim as**  **opposed to an ordinary negligence claim depends on whether the facts allegedly raise issues that**  **are within the common knowledge and experience of the jury or, alternatively, raise questions**  **involving medical judgment. [** Dorris **,** supra **at 46, citing**  Wilson v Stilwill **, 411 Mich 587, 611; 309 NW2d 898 (1981).]**  **Contributing to an understanding of what constitutes a “medical judgment” is**  Adkins v Annapolis Hosp, **116 Mich App 558; 323 NW2d 482 (1982), in which the Court of Appeals**  **held: [M]edical malpractice . . . has been defined**  **as the failure of a member of the medical profession, employed to treat a case**  **professionally, to fulfill the duty to exercise that degree of skill, care and diligence**  **exercised by members of the same profession, practicing in the same or similar locality, in**  **light of the present state of medical science.**

14**[Citation omitted.]**

**IV. A**  **NALYSIS OF ALLEGATIONS We now turn to the complaint in the present case.**  **12 Plaintiff alleges that defendant is liable for: (1)**  **negligently failing to assure that plaintiff’s decedent was provided with an accident-free environment; (2) negligently**  **failing to inspect the bed, bed frame, and mattress to assure the plaintiff’s decedent was not at risk of**  **suffocation; (3) negligently failing to properly train its CENAs regarding the risk to decedent of positional**  **asphyxiation posed by the bed rails; and (4) negligently failing to take steps to protect decedent from further harm**  **or injury after discovering her entangled between her bed rail and mattress on March 1. We address the application**  **of** Dorris **to each of these claims below. 13** 

**A. P**  **ROFESSIONAL RELATIONSHIP The first question in determining whether these claims**  **sound in ordinary negligence or medical malpractice is whether there was a professional relationship between the** 

**12 Because the Court of**  **Appeals majority in this case based its decision on plaintiff’s June 1999 first amended**  **complaint, we will use the claims in that complaint to analyze this case.** 

**13 As stated, we address only Count I of plaintiff’s**  **first amended complaint. Counts II and III (negligent infliction of emotional distress and gross negligence) may**  **be addressed by the parties on remand in light of our decision regarding count I.** 

15**allegedly negligent party and the injured party. This analysis is fairly straightforward and, in this case, is**  **identical for each of plaintiff’s claims. Because defendant, Oakpointe Villa Nursing Centre, Inc., a licensed**  **health care facility, was under a contractual duty requiring both it and its employees to render professional**  **health care services to plaintiff’s decedent, a professional relationship existed to support a claim for**  **medical malpractice.**

**B. M**  **EDICAL J**  **UDGMENT VS . L**  **AY K**  **NOWLEDGE The second question is whether the acts of negligence**  **alleged “raise issues that are within the common knowledge and experience of the jury or, alternatively, raise**  **questions involving medical judgment.”** Dorris, supra **at 46.**  **1. “**  **ACCIDENT -**  **FREE ENVIRONMENT ”**  **Plaintiff’s first claim is that defendant “fail[ed] to assure that plaintiff’s decedent was provided with an**  **accident-free environment.” This is an assertion of strict liability that is not cognizable in either ordinary**  **negligence** or **medical malpractice. With reference to ordinary negligence, the test is whether the defendant**  **breached a duty that proximately caused an injury to the plaintiff. See, e.g.,**  Haliw v Sterling Hts, **464 Mich 297, 309-310; 627 NW2d 581 (2001). With reference to medical** 

16**malpractice law, the Legislature has directed in MCL 600.2912a**  et seq. **, that negligence is the standard. Thus, strict liability is inapplicable to either ordinary**  **negligence or medical malpractice. As a result, because this claim is unrecognized in this area of our law, this**  **allegation states no claim at all. 2.**  **F AILURE TO TRAIN**  **Next, we must determine whether plaintiff’s claim that defendant failed to train its staff “to assess the risk of**  **potential asphyxia” is one that requires expert testimony on medical issues. In**  Dorris **at 47, we stated that the**  **plaintiff’s allegations “concerning staffing decisions and patient monitoring involve questions of professional**  **medical management and are not issues of ordinary**  **negligence that can be judged by the common knowledge and experience of a jury.” That is not to say, however, that**  all **cases concerning failure to train health care employees in the proper monitoring of patients are claims that sound**  **in medical malpractice. The pertinent question remains whether the alleged facts raise questions of medical**  **judgment or questions that are within the common knowledge and experience of the jury.**  Id. **at 46.**

**In** Dorris, **the staff training and patient monitoring issue sounded in medical malpractice because “[t]he**  **ordinary layman does not know the type of supervision or**

17**monitoring that is required for** psychiatric **patients in a** psychiatric **ward.”** Id. **at 47 (emphasis added). That is, knowing how to correctly monitor psychiatric patients**  **requires a specialized knowledge of the complex diseases of the mind that may affect psychiatric patients and how those**  **diseases may influence their behavior, and such knowledge is simply not within the realm of “common knowledge.”**  **Similarly, in order to assess the risk of positional asphyxiation posed by bed railings, specialized knowledge**  **is generally required, as was notably shown by the deposition testimony of plaintiff’s own expert, Dr. Steven**  **Miles. Dr. Miles testified that hospitals may employ a number of different bed rails depending on the needs of a**  **particular patient. 14**  **Accordingly, the assessment of whether a bed rail creates a risk of entrapment for a**  **patient requires knowledge of that patient’s medical history and behavior.**  **15 It is this particularized** 

**14 Deposition Testimony of Dr. Steven Miles (“Well,**  **first off, there’s no such thing as generic side rails.”).**

**15 Dr. Miles testified:**  Q. **Okay. When you indicated that [Hunt] required assistance for activities of daily**  **living, are all persons who require assistance for such activities at risk for entrapment?** 

A. **No. As I stated in my previous comment, that the overall profile is one of being frail**  **and disabled and having poor judgment and a history of impulsive behavior and a history of** 

18**knowledge, according to Dr. Miles, that should prompt a treating facility to use the bedding arrangement that best**  **suits a patient’s “individualized treatment plan,” and to properly train its employees to recognize any risks**  **inherent in that bedding arrangement and to adequately monitor patients to minimize those risks.**  **In describing the appropriate arrangement for plaintiff’s decedent, Dr. Miles testified:**  **This patient had a long history of slide and fall-type injuries, and her entire environment**  **should have been adjusted as part of the individualized treatment plan for this.**  **And furthermore, the facility had a general obligation to all of its patients, including Ms.**  **Hunt, to provide beds that did no prevent—present a space that was large enough for an entrapment**  **asphyxiation. And they should have been particularly aggressive in using that type of**  **equipment for Ms. Hunt.**

**This testimony demonstrates that the ability to assess the risk of positional asphyxia and, thus, the training of**  **employees to properly assess that risk, involves the exercise of professional judgment. The picture necessarily**  **gets more complicated when one considers additional restraint mechanisms used in tandem with bed railing such**  **as vests or pelvic restraints to promote the safety of patients.**  **previous near entrapments. These are the people who are at risk, not the presence of any one of**  **those.**

19**Indeed, an article in the Journal of the American Geriatrics Society coauthored by plaintiff’s expert, Dr.**  **Miles, stresses the need for “clinical and ergonomic changes” in the use of bed rails and decries the widespread**  **use of bed railings “without . . . a clear sense of their role in a treatment plan and without regulatory attention**  **to their design.” 16**  **This article concludes with a call for nursing homes to limit the use of bedrails, but notes that**  **research into the relative costs and benefits of using bedrails is “needed urgently.”**  **17 This much is clear: in order to determine whether**  **defendant adequately trained its CENAs to recognize the risks posed by particular configurations of bed rails and**  **other prescribed restraint systems, therefore, the fact**   ** finder will generally require expert testimony on what** **specialists in the use of these systems currently know about their risks and on how much of this knowledge**  **defendant ought to have conveyed to its staff. Given the patent need in this case for expert**  **testimony regarding plaintiff’s claim of failure to train, we conclude that this claim sounds in medical malpractice**  **under** Dorris **.**

**16 Kara Parker and Steven H. Miles,**  Deaths caused by bedrails, **45 J Am Geriac Soc 797 (1997).**

**17** Id. **, p 799.**

20**3. F**  **AILURE TO INSPECT Next, plaintiff alleges that defendant is liable for**  **“[n]egligently and recklessly failing to inspect the beds, bed frames and mattress to assure that the risk of**  **positional asphyxia did not exist for plaintiff’s decedent.” It is clear from the record in this case that**  **plaintiff’s “failure to inspect” claim is not that defendant and its agents actually failed to**  check **Ms. Hunt’s bedding arrangements,**  **18 but that defendant failed to**  **recognize that her bedding arrangements posed a risk of asphyxiation.**  **As shown above, and as demonstrated through the deposition testimony of plaintiff’s expert, the risk of**  **asphyxiation posed by a bedding arrangement varies from patient to patient. The restraining mechanisms appropriate**  **for a given patient depend upon that patient’s medical history. Thus, restraints such as bed railings are, in the**  **terminology of plaintiff’s expert physician, part of a patient’s “individualized treatment plan.”**  **The risk assessment at issue in this claim, in our judgment, is beyond the ken of common knowledge, because** 

**18 Indeed, plaintiff repeatedly stresses that**  **defendant’s agents saw the gap between the bed and the railing and failed to recognize that this gap created a**  **risk of asphyxiation. See § IV(B)(4) later in this opinion.** 

21**such an assessment require understanding and consideration of the risks and benefits of using and maintaining a**  **particular set of restraints in light of a patient’s medical history and treatment goals. In order to determine**  **then whether defendant has been negligent in assessing the risk posed by Hunt’s bedding arrangement, the fact-finder**  **must rely on expert testimony. This claim, like the claim described above**  , **sounds in medical malpractice. 4.**  **F AILURE TO TAKE STEPS**  **We turn, finally, to a claim fundamentally unlike those discussed previously**  . **Plaintiff alleges that defendant “[n]egligently and recklessly fail[ed] to take**  **steps to protect plaintiff’s decedent when she was, in fact, discovered on March 1 [1997] entangled between the**  **bed rails and the mattress.” This claim refers to an incident on March 1, 1997—the**  **day before Ms. Hunt was asphyxiated—when two of defendant’s CENAs found Ms. Hunt tangled in her bedding and dangerously**  **close to asphyxiating herself in the bed rails. According to the CENAs, they moved Ms. Hunt away from the rail and**  **informed their supervising nurses that Ms. Hunt was at risk of asphyxiation.**  **Plaintiff now contends, therefore, that defendant had notice of the risk of asphyxiation through the knowledge of**  **its agents and, despite this knowledge of the problem,**

22defendant did nothing to rectify it. **It bears repeating that plaintiff’s allegation in this claim is not that**  **defendant took inappropriate steps in dealing with the patient’s compulsive sliding problem or that defendant’s**  **agents were negligent in creating the hazard in the first place. Instead, plaintiff claims that defendant knew of**  **the hazard that led to her death and did nothing about it. This claim sounds in ordinary negligence. No expert**  **testimony is necessary to determine whether defendant’s employees should have taken**  some **sort of corrective action to prevent future harm after learning of the hazard. The**  **fact-finder can rely on common knowledge and experience in determining whether defendant ought to have made an attempt**  **to reduce a known risk of imminent harm to one of its charges.**  **Suppose, for example, that two CENAs employed by defendant discovered that a r**  **esident had slid underwater while taking a bath. Realizing that the resident might**  **drown, the CENAs lift him above the water. They recognize that the resident’s medical condition is such that he is**  **likely to slide underwater again and, accordingly, they notify a supervising nurse of the problem. The nurse,**  **then, does nothing at all to rectify the problem, and the resident drowns while taking a bath the next day.**  **If a party alleges in a lawsuit that the nursing home**

23**was negligent in allowing the decedent to take a bath under conditions known to be hazardous, the**  Dorris **standard would dictate that the claim sounds in ordinary negligence. No**  **expert testimony is necessary to show that the defendant acted negligently by failing to take any corrective action**  **after learning of the problem. A fact-finder relying only on common knowledge and experience can readily determine**  **whether the defendant’s response was sufficient. Similarly, no expert testimony is required here in**  **order to determine whether defendant was negligent in failing to respond after its agents noticed that Ms. Hunt**  **was at risk of asphyxiation. Professional judgment might be implicated if plaintiff alleged that defendant responded**  **inadequately, but, given the substance of plaintiff’s allegation in this case, the fact-finder need only**  **determine whether** any **corrective action to reduce the risk of reccurrence was taken after defendant’s agents noticed**  **that Ms. Hunt was in peril. Thus, plaintiff has stated a claim of ordinary negligence under the standards**  **articulated in** Dorris.

**V. S**  **TATUTE OF L**  **IMITATIONS Having decided that three of plaintiff’s claims sound**  **in medical malpractice, we must determine whether plaintiff’s medical malpractice claims are now time-barred.**  **See MCR 2.116(C)(7).**

24**The period of limitations for a medical malpractice**  **action is ordinarily two years. MCL 600.5805(6).**  **According to MCL 600.5852, plaintiff had two years from the date she was issued letters of authority as personal**  **representative of Hunt’s estate to file a medical malpractice complaint. Because the letters of authority**  **were issued to plaintiff on January 20, 1998, the medical malpractice action had to be filed by January 20, 2000.**  **Thus, under ordinary circumstances, plaintiff’s February 7, 2001, medical malpractice complaint (her third complaint in**  **total) would be time-barred. The equities of this case, however, compel a different**  **result. The distinction between actions sounding in medical malpractice and those sounding in ordinary**  **negligence is one that has troubled the bench and bar in Michigan, even in the wake of our opinion in**  Dorris **. Plaintiff’s failure to comply with the applicable statute**  **of limitations is the product of an understandable confusion about the legal nature of her claim, rather than**  **a negligent failure to preserve her rights. Accordingly, for this case and others now pending that involve similar**  **procedural circumstances, we conclude that plaintiff’s medical malpractice claims may proceed to trial along with**  **plaintiff's ordinary negligence claim. MCR 7.316(A)(7). However, in future cases of this nature, in which the line** 

25**between ordinary negligence and medical malpractice is not easily distinguishable, plaintiffs are advised as a matter**  **of prudence to file their claims alternatively in medical malpractice and ordinary negligence within the applicable**  **period of limitations. 19** 

**VI. C**  **ONCLUSION**

**Plaintiff has stated two clai ms that require expert**  **testimony and therefore sound in medical malpractice. Although these claims were filed after the applicable**  **period of limitations had run and would ordinarily be time**   ** barred, the procedural features of this case dictate that** **plaintiff should be permitted to proceed with her medical malpractice claims. The claim that defendant negligently**  **failed to respond after learning that Ms. Hunt’s bedding arrangements created a risk of asphyxiation sounds in**  **ordinary negligence. Finally, plaintiff’s claim regarding an “accident-free environment” sounds in strict liability**  **and is not cognizable. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to**  **the circuit court for further proceedings consistent with**

**19 If the trial court th**  **ereafter rules that the claim sounds in ordinary negligence and not medical malpractice,**  **and may thus proceed in ordinary negligence, and this ruling is subsequently reversed on**  **appeal, the plaintiff will nonetheless have preserved the right to proceed with**  **the medical malpractice cause of action by having filed in medical malpractice within the period of limitations.** 

26**this opinion. Stephen J. Markman**  **Maura D. Corrigan Elizabeth A. Weaver**  **Clifford W. Taylor Robert P. Young, Jr.** 

27**_______________________________ S T A T E O F M I C H I G A N** 
**SUPREME COURT**

**DENISE BRYANT, personal representative of the estate**  **of Catherine Hunt, deceased, Plaintiff-Appellee,** 

**v Nos. 121723-121724**  **OAKPOINTE VILLA NURSING CENTRE, INC.,**  **Defendant-Appellant.**

**KELLY, J. (** dissenting **). The question in this case is whether plaintiff's**  **claims sound in medical malpractice or ordinary negligence. I disagree with the majority’s reading of plaintiff’s**  **complaint and believe that all of plaintiff’s claims sound in ordinary negligence. I also disagree with the**  **majority’s analysis of the statute of limitations issue.**
**BACKGROUND Plaintiff's decedent was a resident of defendant’s**  **nursing care facility. Among her needs were safety restraints on her bed to prevent her from falling out and**  **injuring herself. In early 1997, defendant’s nurses’ assistants noted that she had developed a propensity to**  **move around in bed. Because of her petite stature and the configuration of the bed, she was in danger of slipping** **under the bedrails and catching her neck. This could lead to strangulation and death.**  **Shortly after, the assistants’ fears were realized. First, they discovered plaintiff’s decedent “tangled up in**  **the rails,” her clothes, and the bedding. They successfully extricated her, but feared that she was in**  **grave danger of being hanged. Yet, no change was made in the restraint configuration. The next day, she was**  **discovered caught by her neck under the rails. This time, she did not recover. She died two days later after being**  **removed from life support. Plaintiff brought suit against the facility.**  **Following pretrial motions for summary disposition, plaintiff was allowed to file a first amended complaint in**  **June 1999. She alleged three counts of negligence: ordinary negligence, negligent infliction of emotional**  **distress, and gross negligence. 1**  Ante **at 6. Central to the resolution of this case is plaintiff’s count for ordinary**  **negligence. The ordinary negligence count consisted of four**  **distinct claims. The first was that defendant, by**

**1 Plaintiff alleged that defendant negligently**  **inflicted emotional distress on her by attempting to conceal the true circumstances of her decedent's death.**  **The third count alleged that the nurses’ assistants were grossly negligent for failing to inform their supervisors**  **that they had found decedent entangled in her bedding the day before her death.** 

**2 providing medical care and housing to plaintiff’s decedent,**  **owed her decedent a duty to provide an accident-free environment. Defendant had a duty, plaintiff asserted, to**  **assure that plaintiff’s decedent was not subjected to an unreasonable risk of injury.**  **Second, plaintiff asserted that defendant breached its duty to train its staff to recognize the danger posed by**  **bedrails. According to plaintiff’s complaint, defendant had received specific information a**  **bout this danger from the United States Food and Drug Administration (FDA). The**  **allegation is that defendant failed to take precautions or share this information with its staff.**  **Third, plaintiff asserted that defendant discovered plaintiff’s decedent caught between the rails and mattress.**  **Plaintiff complains that defendant failed to prevent a recurrence by not remedying the rails-mattress**  **configuration. Fourth, plaintiff asserted that defendant had failed**  **to inspect the bed’s configuration to ensure that a danger of strangulation was not present.**  **Defendant moved for summary disposition under MCR 2.116(C)(7), and the circuit court granted the motion. It**  **determined that plaintiff’s ordinary negligence claims were really allegations of medical malpractice.**  **Plaintiff appealed to the Court of Appeals. She also**

**3 took measures to preserve her claims as malpractice claims**  **by filing an amended complaint and a notice of intent to sue pursuant to MCL 600.2912b. Defendant moved to dismiss,**  **asserting that the suit was time-barred under the medical malpractice statutory period of limitations. MCL**  **600.5805(6). When the circuit court held that the statutory period had been tolled, defendant went to the**  **Court of Appeals. The Court of Appeals consolidated both parties'**  **appeals. It concluded that plaintiff's claims sounded in ordinary negligence, adding that they would be barred by**  **the limitations period if they sounded in medical**  **malpractice. Unpublished opinion per curiam, issued May 21, 2002 (Docket Nos. 228972, 234992). We granted**  **defendant’s subsequent application for leave to appeal. 2**  **468 Mich 943 (2003). The majority determines that only one of plaintiff’s**  **claims sounds in ordinary negligence, that another is not cognizable under Michigan law, and that the other two are**  **medical malpractice claims. It bases its holding on two facts: One, defendant did not respond at all upon finding**  **plaintiff’s decedent entangled in her bedding and, therefore, one of plaintiff’s claims is for ordinary** 

**2 We also ordered that the case be argued and submitted**  **with** Lawrence v Battle Creek Health Systems, **468 Mich 944 (2003).** 

**4 negligence. Two, the use of bedrails must be prescribed by**  **a medical professional and, therefore, the remaining claims necessarily sound in medical malpractice.** 
**STANDARD OF REVIEW We review motions for**  **summary disposition under MCR 2.116(C)(7) de novo. We accept the allegations in the**  **complaint and documentary evidence as true unless other documents specifically contradict them.**  Fane v Detroit Library Comm **, 465 Mich 68, 74; 631 NW2d 678 (2001).**
**MEDICAL MALPRACTICE VERSUS ORDINARY NEGLIGENCE**

**In** Adkins v Annapolis Hosp, **3 we recognized that**  **ordinary negligence could occur in the course of medical care. In this case, plaintiff is alleging that ordinary**  **negligence occurred. She does not dispute that a professional medical relationship existed between defendant**  **and her decedent. But she relies on the established fact that every medical professional remains under a duty to**  **exercise reasonable care. Also, professional standards of medical care supplement but do not necessarily supplant the**  **ordinary duty of care. Various differences exist between medical malpractice**  **and negligence. When medical malpractice occurs, there has been a failure or omission that cannot be assessed by a** 

**3 420 Mich 87; 360 NW2d 150 (1984). See also**  Dyer v Trachtman **, 470 Mich 45, 54 n 5; 679 NW2d 311 (2004).**

**5 layperson; it involves a matter that requires the exercise**  **of professional medical judgment. Without expert testimony, the ordinary juror cannot determine if a**  **defendant medical professional has fulfilled its duty of professional care.**  Dorris v Detroit Osteopathic Hosp Corp **, 460 Mich 26, 47; 594 NW2d 455 (1999). By contrast, expert**  **witnesses are not always required in ordinary negligence**  **actions because the trier of fact can often rely on its own common knowledge and experience. In addition, medical**  **malpractice actions involve the alleged breach of medical standards of care; negligence actions do not.** 
**THE NEGLIGENCE ALLEGED Here, plaintiff’s amended complaint alleged that**  **defendant was negligent in four ways. Defendant is alleged to have breached its duties to**  **(a) . . . assure that plaintiff’s decedent**  **was provided with an accident-free environment; (b)**  **. . . train [nurses’ assistants] to assess the risk of positional asphyxia by**  **plaintiff’s decedent despite having received specific warnings . . . ;**  **(c) . . . take steps to protect plaintiff’s**  **decedent when she was, in fact, discovered on March 1 [1997] entangled bet**  **ween the bed rails and the mattress;**  **(d) . . . inspect the beds, bed frames and**  **mattresses to assure that the risk of positional asphyxia did not exist for plaintiff’s decedent.**  **With respect to the first claim, I disagree with the majority that plaintiff’s assertion of a duty to provide an**  **accident-free environment is not cognizable under Michigan**

**6 law.**  Ante **at 17-18. We have consistently held that the nature of the claim alleged is based on the underlying**  **facts. It is independent of the words used to describe it.**

**See** Dorris **at 43. Plaintiff's decedent was in defendant’s custodial**  **care. As the Court of Appeals stated, defendant was obligated to take reasonable precautions to provide a**  **reasonably safe environment. Unpublished opinion per curiam, issued May 21, 2002 (Docket Nos. 228972, 234992),**  **citing** Owens v Manor Health Care Corp **, 159 Ill App 3d 684, 688; 512 NE2d 820 (1987). A breach of this duty can**  **support a claim for ordinary negligence. Plaintiff's first claim should be read to mean that defendant was obligated**  **to provide an environment free of negligently caused accidents.**  **Contrary to the majority’s reading of this claim, plaintiff has not asserted that defendant was the guarantor**  **of the safety of plaintiff's decedent. The ordinary juror can assess whether defendant’s alleged actions or inactions**  **constituted reasonable measures to fulfill its duty. The second claim is that defendant breached its duty**  **to train its nurses’ assistants. I agree with the majority that assessing the medical needs of patients requires**  **medical expertise. Similarly, assessing whether those needs were adequately addressed requires medical expertise.** 

**7 See part IV(B)(2)**  ante **. However, a fair reading of this claim reveals that plaintiff is not challenging defendant’s**  **assessment of her decedent’s medical needs. Moreover, plaintiff is not challenging whether bed rails and other**  **restraints were appropriately prescribed. Instead, plaintiff asserts that defendant knew of the**  **dangers posed by bed rails, yet, it took no steps to pass this information along to its employees. As the majority**  **opines, [n]o expert testimony is necessary to determine**  **whether [defendant] should have taken** some **sort of corrective action to prevent future harm after**  **learning of the hazard. The fact-finder can rely on common knowledge and experience in determining**  **whether defendant ought to have made an attempt to reduce a known risk of imminent harm to one of**  **its charges. [4]**  **“Some sort of corrective action” may include, as plaintiff alleges, training employees or passing along specific**  **information to them that it has learned from other employees or the FDA. Plaintiff asserts that defendant**  **failed to act once it had knowledge of a hazard, not that it breached a medical standard of care. Hence, this claim**  **sounds in ordinary negligence as well. Plaintiff’s third and fourth claims concern**  **defendant’s actions with respect to her decedent becoming entangled in the bedding. Plaintiff alleged that defendant** 

**4 See**  ante **at 24, discussing plaintiff’s claim for defendant’s failure to respond after initially finding**  **plaintiff's decedent entangled in her bedding.**

**8 failed to “take steps to protect plaintiff’s decedent when**  **she was, in fact, discovered on March 1 [1997] entangled between the bed rails and the mattress” and to “inspect the**  **beds, bed frames and mattresses to assure that the risk of positional asphyxia did not exist for plaintiff’s**  **decedent.” Plaintiff asserts that the nurses’ assistants employed**  **by defendant failed to notify their supervisors when plaintiff’s decedent was found caught in the bedrails on**  **the first occasion. Alternatively, plaintiff asserts that a warning was given to the supervisors that they**  **disregarded. Again, plaintiff states: they “[n]egligently and**  **recklessly fail[ed] to inspect the beds, bed frames and mattresses to assure that the risk of positional asphyxia**  **did not exist . . .” and “to take steps to protect plaintiff’s decedent . . . .” These allegations assert the**  **breach of a duty of due care owed by defendant to plaintiff’s decedent that can be evaluated by ordinary**  **jurors. Defendant’s nurses’ assistants were alerted to the**  **danger when two of them first found plaintiff’s decedent trapped in the bedrails. One specifically testified that,**  **although she did not comprehend the medical needs of plaintiff’s decedent, she recognized that the decedent was** 

**9 in serious physical danger. She expressed to her**  **supervisor her fear that the elderly woman would be found dead if something were not done.**  **Plaintiff has presented evidence that defendant’s nurses’ assistants did not require medical training to**  **understand that this small, frail person could again slip under the bedrail and jam her neck, endangering her life.**  **Medical training was not needed to instruct them that the bedrail-mattress configuration had to be changed.**  **Laypersons can properly assess whether the manner in which bedrails and mattresses are configured creates an**  **unreasonable risk of harm to a person like plaintiff's decedent. The claims do not involve the breach of a**  **medical standard of care. They involve simple neglect to act or ordinary negligence, as the majority concedes.**  **Unlike the majority, I do not place undue emphasis on the fact that the nurses’ assistants had previously**  **discovered plaintiff's decedent in a dangerous position.**

Ante **at 25. Any person caring for her could have recognized the danger that the bedding posed to a petite,**  **frail, and elderly person who lacked normal control over her movements.**  **5**

**5 One nurses’ assistant testified that she recognized**  **the dangerous bedding arrangement that entangled plaintiff's decedent on a previous occasion even though she**  **was not plaintiff’s decedent’s usual caregiver. This**

**10 The danger here was similar to that experienced by an**  **infant in a crib whose mattress is too small and whose rails allow the baby to slip through. Those caring for**  **such a child would quickly recognize the danger, and an expert would not be required to point it out. Similarly,**  **ordinary jurors can assess whether defendant's caregivers here should have recognized the danger and acted with due** 

**care. As stated earlier in this opinion, the nature of the**  **claim is independent of the words used to describe it. Plaintiff used the proper term “positional asphyxia” to**  **describe being hanged. However, use of the medical term does not transform plaintiff's negli**  **gence claim into one sounding in malpractice.**  **Defendant’s supposition that ordinary people are incapable of recognizing an obvious danger of hanging is**  **untenable, particularly here where untrained people actually did recognize the danger. The assessment of a**  **hazard does not require professional training merely because a professional is capable of assessing it as well**  **and can explain the exact mechanism of the danger. If that were true, a physical science expert would be required in**  **this case as well as a medical one. That expert would be**

**assistant had not ha d an opportunity to observe plaintiff's**  **decedent for a prolonged period.**

**11 needed to inform the jury how plaintiff’s decedent was in**  **danger of strangulation because gravity would pull her down once she slipped beneath the bedrails.** 
**STATUTE OF LIMITATIONS Generally the period of limitations is tolled at the**  **time the complaint is filed. MCL 600.5856(a). The period for an action premised on ordinary negligence is three**  **years. MCL 600.5805(10);** Stephens v Dixon **, 449 Mich 531; 536 NW2d 755 (1995). Plaintiff’s decedent died in March**  **1997, and plaintiff brought her action in April 1998. This was well within the period of limitations applicable to**  **ordinary negligence actions, as well as wrongful death actions premised on medical malpractice. MCL 600.5852; MCL**  **600.5805(6). Still well within the applicable period of limitations, the trial court initially ruled that**  **plaintiff’s claim sounded in ordinary negligence. Thus,**  **under MCL 600.5856(a), the period of limitations was tolled.**  **I believe that plaintiff and other similarly situated litigants are entitled to rely on a trial court’s decision**  **that their case sounds in ordinary negligence. The filing of plaintiff's ordinary negligence complaint tolled the**  **period of limitations, at least until the new trial judge reversed that decision.**  **“Plaintiff’s failure to comply with the applicable**

**12 statute of limitations” was less the “product of [her]**  **understandable confusion about the legal nature of her claim . . .”**  **6 and more the product of plaintiff’s**  **justifiable reliance on the trial court’s initial ruling. This Court need not resort to equity to save**  **plaintiff’s so-called medical malpractice claims. MCL 600.5856(a) and the initial trial court decision dictated**  **that plaintiff’s filing of the ordinary negligence complaint tolled the running of the period of limitations.**  **Finally, the majority’s “prudent” decision that obliges someone injured by a negligent medical practitioner**  **to allege alternate theories of medical malpractice and ordinary negligence pertaining to a single injury is ill**  **** **conceived. It needlessly complicates and impedes the injured person's efforts to recover through the courts from**  **those responsible for his plight. The majority’s free and unsolicited advice sends the wrong message to the bench and**  **bar, and places an undue burden on injured people.**
**CONCLUSION In this case, plaintiff has alleged that defendant had**  **notice of a risk of harm that was readily apparent to the layperson and could have been rectified by a layperson.**  **She has also alleged that, after receiving notice of the danger, defendant negligently missed several opportunities** 

**6** Ante **at 26.**

**13 to avert it.**  **Medical expertise is not required to determine whether defendant’s nonresponses constituted a failure to take**  **ordinary care. An expert could render an opinion on the issues in this case, but it is unnecessary because the case**  **does not raise questions of medical judgment. It does not involve the breach of medical standards of care. Instead,**  **the issues are within the common knowledge and experience of lay jurors. Hence, plaintiff should be enabled to**  **proceed under a theory of ordinary negligence. Moreover, if any of plaintiff’s claims did sound in**  **medical malpractice, more than the equities of this case require that plaintiff be allowed to proceed; plaintiff**  **reasonably relied on the decisions of the lower courts that**

**Michael F. Cavanagh all her claims sound in ordinary negligence.**  **The decision of the Court of Appeals affirmed to the extent that it found**  **that sh**  **ould all**  **be of**  **plaintiff's claims sound in negligence. Marilyn Kelly** 

**14**