_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

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 dementia1 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 multiinfarct 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 included 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 large 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 sounded 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. STANDARD 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. MEDICAL 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 the 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 whether 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 presented 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 NW2d 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. ANALYSIS 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. PROFESSIONAL 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. MEDICAL JUDGMENT VS. LAY KNOWLEDGE 

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. FAILURE 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 factfinder 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. FAILURE 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. FAILURE 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, 

22
 
defendant 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 resident 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. STATUTE OF LIMITATIONS 

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. CONCLUSION 

Plaintiff has stated two claims 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 timebarred, 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 thereafter 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 about 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 between 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 negligence 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 had 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 illconceived. 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 

should 

all 

be 

of 

plaintiff's claims sound in negligence. 

Marilyn Kelly 

14