Estate of Brian a Brennan-Baker v. Chippewa Cnty War Memorial Hosp

STATE OF MICHIGAN

COURT OF APPEALS

TAMMY J. BRENNAN and MARK A. OWENS, UNPUBLISHED

Co-Personal Representatives of the ESTATE OF October 16, 2014

BRIAN A. BRENNAN-BAKER, and TAMMY J.

BRENNAN, Individually,

Plaintiffs-Appellants,

v No. 315795

Chippewa Circuit Court

CHIPPEWA COUNTY WAR MEMORIAL LC No. 11-011565-NH

HOSPITAL, INC., d/b/a WAR MEMORIAL

HOSPITAL, HIAWATHA BEHAVIORAL

HEALTH, and NORTHCARE,

Defendants-Appellees.

TAMMY J. BRENNAN and MARK A. OWENS,

Co-Personal Representatives of the ESTATE OF

BRIAN A. BRENNAN-BAKER, and TAMMY J.

BRENNAN, Individually,

Plaintiffs-Appellees,

v No. 318452

Chippewa Circuit Court

CHIPPEWA COUNTY WAR MEMORIAL LC No. 11-011565-NH

HOSPITAL, INC., d/b/a WAR MEMORIAL

HOSPITAL, and NORTHCARE,

Defendants,

and

HIAWATHA BEHAVIORAL HEALTH,

Defendant-Appellant.

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TAMMY J. BRENNAN and MARK A. OWENS,

Co-Personal Representatives of the ESTATE OF

BRIAN A. BRENNAN-BAKER, and TAMMY J.

BRENNAN, Individually,

Plaintiffs-Appellants,

v No. 318594

Chippewa Circuit Court

CHIPPEWA COUNTY WAR MEMORIAL LC No. 11-011565-NH

HOSPITAL, INC., d/b/a WAR MEMORIAL

HOSPITAL, HIAWATHA BEHAVIORAL

HEALTH, and NORTHCARE,

Defendants-Appellees.

Before: MURPHY, C.J., and SAWYER and M. J. KELLY, JJ.

PER CURIAM.

In this suit involving claims for wrongful death, plaintiffs, Tammy J. Brennan and Mark

A. Owens, as personal representatives of the estate of Brian Brennan-Baker, and Brennan in her

individual capacity, appeal by leave granted the trial court’s order granting summary disposition

in favor of defendant NorthCare in Docket No. 315795. In Docket No. 318452, defendant,

Hiawatha Behavioral Health (Hiawatha), appeals the trial court’s order denying its motion for

summary disposition premised on governmental immunity. Finally, in Docket No. 318594,

plaintiffs appeal by leave granted the trial court’s order granting summary disposition in favor of

defendant Chippewa County War Memorial Hospital, Inc. (Memorial Hospital). For the reasons

more fully explained below, we affirm in part and reverse in part.

The claims in this suit arise from Brennan-Baker’s death several days after he hung

himself on October 13, 2008. Brennan-Baker was 21 at the time.

I. NORTHCARE

We first address plaintiffs’ contention that the trial court erred when it granted

NorthCare’s motion for summary disposition. Specifically, plaintiffs argue there were issues of

fact that could not be resolved on summary disposition. They maintain their claims against

NorthCare sounded in ordinary negligence and not medical malpractice and that their expert,

Gerald Shiener, M.D.’s opinion was sufficient to establish proximate cause. This Court reviews

de novo a trial court’s decision on a motion for summary disposition. Maple Grove Twp v

Misteguay Creek Intercounty Drain Bd, 298 Mich App 200, 206; 828 NW2d 459 (2012).

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A motion under “MCR 2.116(C)(8) tests the legal sufficiency of the claim on the

pleadings alone to determine whether the plaintiff has stated a claim on which

relief may be granted.” Summary disposition under subrule (C)(8) is appropriate

“if no factual development could justify the plaintiff’s claim for relief.” A motion

for summary disposition under MCR 2.116(C)(10) “tests the factual support of a

plaintiffs’ claim.” In reviewing a motion under subrule (C)(10), we consider “the

pleadings, admissions, affidavits, and other relevant documentary evidence of

record in the light most favorable to the nonmoving party to determine whether

any genuine issue of material fact exists to warrant a trial.” [Id. at 206-207

(citations omitted).]

On appeal, there is some question as to whether plaintiffs’ claims against NorthCare

involve medical malpractice or ordinary negligence. Before the trial court, plaintiffs relied on

the affidavit of merit by Brian Perron, Ph.D., who is an expert in social work, to show that

NorthCare’s social worker, Brian Bezotte, breached the applicable standard of care by failing to

properly diagnose and assure appropriate treatment services to Brennan-Baker when he spoke to

him on the phone. In its motion for summary disposition, NorthCare primarily argued that

plaintiffs could not establish a causal link between Bezotte’s acts or omissions and Brennan-

Baker’s suicide. Because we agree that—whether the claim sounded in ordinary negligence by a

professional or medical malpractice—plaintiffs failed to establish a causal link between

Bezotte’s alleged acts or omissions and Brennan-Baker’s death, we need not determine whether

the claim sounds in medical malpractice. See Jenkins v Patel, 471 Mich 158, 164; 684 NW2d

346 (2004) (explaining that a claim under the wrongful death act, see MCL 600.2922, applies to

all claims to recover for a wrongful death, whether under ordinary negligence or medical

malpractice).

In order to establish their claim for wrongful death, whether as a claim for medical

malpractice or other negligence, plaintiffs had to show that Bezotte breached the standard of care

and that his breach proximately caused Brennan-Baker’s death. See Craig v Oakwood Hosp, 471

Mich 67, 86; 684 NW2d 296 (2004); Skinner v Square D Co, 445 Mich 153, 162-163; 516

NW2d 475 (1994); Moning v Alfono, 400 Mich 425, 438, 443; 254 NW2d 759 (1977) (opinion

by Levin, J.) (discussing the standard of care applicable to claims premised on ordinary

negligence—namely, to act as a reasonable person would act under like circumstances).

Proximate cause is a legal term of art that encompasses both cause-in-fact and legal or proximate

cause:

The cause in fact element generally requires showing that “but for” the

defendant’s actions, the plaintiff’s injury would not have occurred. On the other

hand, legal cause or “proximate cause” normally involves examining the

foreseeability of consequences, and whether a defendant should be held legally

responsible for such consequences.

As a matter of logic, a court must find that the defendant’s negligence was a cause

in fact of the plaintiff’s injuries before it can hold that the defendant’s negligence

was the proximate or legal cause of those injuries.

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Generally, an act or omission is a cause in fact of an injury only if the

injury could not have occurred without (or “but for”) that act or omission. While

a plaintiff need not prove that an act or omission was the sole catalyst for his

injuries, he must introduce evidence permitting the jury to conclude that the act or

omission was a cause.

It is important to bear in mind that a plaintiff cannot satisfy this burden by

showing only that the defendant may have caused his injuries. Our case law

requires more than a mere possibility or a plausible explanation. Rather, a

plaintiff establishes that the defendant’s conduct was a cause in fact of his injuries

only if he “set[s] forth specific facts that would support a reasonable inference of

a logical sequence of cause and effect.” A valid theory of causation, therefore,

must be based on facts in evidence. And while “ ‘[t]he evidence need not negate

all other possible causes,’ ” this Court has consistently required that the evidence

“ ‘exclude other reasonable hypotheses with a fair amount of certainty.’ ” [Craig,

471 Mich at 86-88 (citations omitted).]

As this Court has explained, a mere correlation between an act or omission and the

ultimate injury is not sufficient to establish causation. Teal v Prasad, 283 Mich App 384, 392;

772 NW2d 57 (2009). “[A] plaintiff cannot establish causation if the connection made between

the defendant’s negligent conduct and the plaintiff’s injuries is speculative or merely possible.”

Id. For that reason, we cannot here determine whether Bezotte was the cause in fact of Brennan-

Baker’s suicide and death “by imagining every possible scenario and determining whether the

likelihood of [his] death would have diminished in each situation.” Id. Instead, plaintiffs had an

obligation to “provide sufficient evidence to establish a reasonable inference of a logical

sequence of cause and effect, and not merely speculate, on the basis of a tenuous connection, that

[Brennan-Baker] would not have” attempted suicide and died had it not been for Bezotte’s

breach of the standard of care. Id. at 392-393 (citations omitted).

Plaintiffs failed to present evidence, which, if believed, would permit a reasonable jury to

find that, but for Bezotte’s breach of the standard of care applicable to his telephone interview

with Brennan-Baker, Brennan-Baker would not have attempted suicide and later died. Plaintiff’s

expert, Shiener, opined that the risk of Brennan-Baker attempting suicide would have been

“reduce[d]” had the emergency room physician obtained a psychiatric consultation: “Had a

psychiatrist undertaken an assessment, then hospitalization would have been one of the things

available to him.” But he also admitted that he could not “speak to what his findings would have

been at that time because none of your clients ever undertook to call that doctor.” Shiener also

asserted that hospitalization would have been “most likely” but could not state that

hospitalization would have “been invariable or inevitable.” Moreover, although Shiener

criticized the failure to offer Brennan-Baker voluntary hospitalization, there was no evidence that

he would have accepted hospitalization and Shiener did not opine that he could have been

involuntarily admitted. That is, Shiener effectively conceded that Brennan-Baker might not have

been hospitalized under the facts of this case. In assessing Brennan-Baker’s risk, Shiener further

indicated, “If you want me to come out and say, no, I don’t think a social worker or master level

psychologist [or] some other discipline of mental health provider would be adequate; likely not.”

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Brennan-Baker attempted to hang himself approximately four days after leaving

Memorial Hospital’s emergency room with instructions to contact his personal physician or to

return to the emergency room as necessary. In the emergency room, he was diagnosed as

intoxicated and with anxiety, not depression. It was determined that he was not in an emergent

situation or at risk for suicide, in part premised on his repeated denials that he was suicidal.

Seven hours following this initial evaluation, Brennan-Baker went to Hiawatha and saw Ronald

Remondini to determine if he was a candidate for community mental health services. Again,

Brennan-Baker did not indicate that he had any intent to engage in self harm, and was provided a

telephone number for crisis intervention and a list of possible service providers with

encouragement for follow-up. Remondini then connected Brennan-Baker by phone with Bezotte

at NorthCare to verify whether he qualified for publicly-funded mental health services. Bezotte

determined that Brennan-Baker did not qualify for the services, but encouraged him to seek

private care. During the interview with Bezotte, Brennan-Baker denied having any intention of

harming himself. It was only days later, after Brennan-Baker went to work, engaged in various

social activities with friends and family, including going hunting, that Brennan-Baker became

upset and hung himself.

Plaintiffs provided no evidence that had Bezotte complied with the applicable standard of

care Brennan-Baker would not have hung himself and ultimately died. Although plaintiffs

contend that, had Bezotte complied with the applicable standard of care, there would have been

various interventions, they did not present evidence that there would in fact have been a

particular intervention and that the intervention would have prevented Brennan-Baker from

hanging himself. Without such evidence, plaintiffs’ claim against NorthCare was nothing more

than speculation. Shiener himself opined that it was unlikely that any mental health professional

other than a psychiatrist would have been able to identify Brennan-Baker’s suicidal ideation and,

therefore, would have taken appropriate preventive action, such as securing hospitalization.

Plaintiffs likewise did not present any evidence that, had Bezotte recognized over the phone that

Brennan-Baker needed immediate intervention, he could have provided or secured the necessary

services. As in Teal, one “might speculate that [Brennan-Baker] might not have committed

suicide” if he had been detained, “but the parties do not provide evidence identifying the grounds

on which this detention could have occurred,” or that he would have accepted voluntary

hospitalization had it been offered. Id. at 394. Plaintiffs merely speculate that some intervention

might have diverted Brennan-Baker from his decision to hang himself several days later and after

numerous additional interactions that may have played a role in his decision. In fact, Shiener’s

suggestion that Brennan-Baker would have been responsive to medication is contrary to the

record, which shows that Brennan-Baker consistently stated he would refuse the prescription of

psychotropic medications. While Shiener asserted that a psychiatric consultation would have

prevented Brennan-Baker’s suicide, he did not reference or provide “any facts or establish a

causal chain of events that would support his opinion.” Id. at 395. Plaintiffs’ failure to establish

cause in fact defeated their claim against NorthCare.

Plaintiffs also suggest that defendants each owed a special duty to Brennan-Baker “as a

particularly susceptible person.” Even assuming that Brennan-Baker had a special susceptibility

to suicide on the basis of his prior history, plaintiffs still had to show that the defendants’ acts or

omissions proximately caused Brennan-Baker’s death, which they did not do in NorthCare’s

case. Because plaintiffs failed to present any evidence that had Bezotte complied with the

standard of care, Brennan-Baker would not have attempted to commit suicide and later died, the

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trial court properly dismissed their claims against NorthCare. For that reason, we decline to

address NorthCare’s argument on immunity.

II. HIAWATHA

In Docket No. 318452, Hiawatha argues the trial court erred when it denied its motion for

summary disposition because plaintiffs failed to establish the applicability of an exception to its

governmental immunity and plaintiffs failed to present evidence to establish that Hiawatha’s

agent was the cause in fact of Brennan-Baker’s death. The trial court denied Hiawatha’s motion

for summary disposition after it concluded there was evidence from which a reasonable jury

could conclude that Hiawatha’s employee’s failure to comply with the standard of care caused

Brennan-Baker’s attempted suicide and death.1

Summary disposition under MCR 2.116(C)(7) is appropriate when a claim

is barred by immunity granted by law. In reviewing a ruling pursuant to subrule

(C)(7), “[w]e consider all documentary evidence submitted by the parties,

accepting as true the contents of the complaint unless affidavits or other

appropriate documents specifically contradict them.” The applicability of

governmental immunity is a question of law that is also reviewed de novo.

[Seldon v Suburban Mobility Auth for Regional Transp, 297 Mich App 427, 432-

433; 824 NW2d 318 (2012) (citations omitted).]

Hiawatha argued it was entitled to immunity because plaintiffs failed to demonstrate that

any of the statutory exceptions to immunity applied to the facts of this case. Specifically, it

argued that MCL 691.1407(4) was inapplicable because the decedent was not its “patient” and

because it was not providing “treatment or care.” Even assuming that the exception stated under

MCL 691.1407(4) applied to the facts of this case, see McLean v McElhaney, 289 Mich App

592; 798 NW2d 29 (2010), we conclude that the trial court erred when it denied Hiawatha’s

motion.

The trial court denied Hiawatha’s motion for summary disposition on the grounds that

there was evidence from which a reasonable jury could find that the acts or omissions by

Hiawatha’s agent caused Brennan-Baker’s death. Hiawatha’s agent, Remondini, who has a

Masters degree in “counseling and personal services,” met with Brennan-Baker on October 9,

2008, after Brennan-Baker came in to seek mental health services.

Following a face-to-face interview, Remondini determined that Brennan-Baker had

anxiety and did not qualify for Hiawatha’s services. Remondini concluded that Brennan-Baker

did not need treatment because he denied ongoing suicidal ideation or a history of attempts at

self-harm, he had an orientation to the future, he appeared competent, he was sober, and he

understood his need for treatment. Under the totality of the circumstances, Remondini felt that

Brennan-Baker was not a danger to himself; indeed, Brennan-Baker acknowledged that his

1

We note that the trial court did not directly address Brennan’s individual claim for intentional

infliction of emotional distress in its order.

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suicidal thoughts of the previous evening were “stupid” and stated that he did not want to go

through with the thoughts because he did not want to damage his vehicle. Brennan-Baker also

declined Remondini’s attempt to help him construct a safety plan. Remondini admitted that

Brennan-Baker showed signs of depression premised on his situation (that is, his recent

relationship problems), but he believed Brennan-Baker’s major issue was anxiety. As a result,

Remondini put Brennan-Baker in telephone contact with NorthCare to verify if he would qualify

for any services. Remondini asserted that he lacked authority to simply provide services because

such authorizations originated with NorthCare. Before Brennan-Baker left Hiawatha’s facility,

Remondini provided him with a list of resources for private mental health services and

professionals, along with a business card and instructions regarding a crisis line.

Given the record evidence, we conclude the trial court erred when it determined that there

was evidence sufficient to establish a question of fact on causation. As was the case with the

evidence concerning NorthCare, plaintiffs failed to establish that, had Remondini complied with

the standard of care, Brennan-Baker would not have hung himself and later died. Teal, 283 Mich

App at 392-393. While opining that a psychiatric consultation was necessary, Shiener could not

definitively say that such a consultation would have resulted in Brennan-Baker’s hospitalization

and could not identify other applicable services, which Brennan-Baker would have accepted or

that would have benefited him. Of particular note is the absence in Shiener’s opinion of the

potential benefit of other intermediate and less intensive services or interventions and the failure

to demonstrate that such services or treatments were within the repertoire available to Hiawatha.

Shiener’s suggestion that Brennan-Baker would have been responsive to medication is contrary

to the record; the evidence showed that Brennan-Baker consistently stated he would refuse

psychotropic medication. While Shiener baldly asserted that a psychiatric consultation would

have prevented Brennan-Baker’s suicide, he did not reference or provide “any facts or establish a

causal chain of events that would support his opinion.” Id. at 395. Indeed, Shiener admitted that

it was unlikely that any mental health professional other than a psychiatrist would have been able

to identify Brennan-Baker’s suicidal ideation or could have taken appropriate preventive action,

such as securing hospitalization. This testimony suggests that Remondini could not have taken

any action to prevent Brennan-Baker’s later decision to hang himself. Instead, as in Teal, the

record here leaves one speculating whether and to what extent any particular intervention might

have halted the chain of events that led Brennan-Baker to act as he did. But such speculation is

insufficient to establish causation. Id. at 394.

Plaintiffs needed to present evidence that would allow a reasonable jury to find that

Remondini should have taken a particular action and, had he done so, Brennan-Baker would not

have hung himself. This they did not do. Instead, they presented evidence that, had Brennan-

Baker been properly evaluated, a psychiatrist might have diagnosed him with suicidal ideation,

or might have committed him to a hospital facility, or might have prescribed appropriate

medications, or might have engaged in some other intervention, and the hypothetical

hospitalization, prescription, or other intervention might have prevented Brennan-Baker from

later hanging himself. As in Teal, “[p]laintiff[s] failed to establish a reasonable inference, based

on a logical sequence of cause and effect that” Remondini’s acts or omissions involved a causal

chain leading to Brennan-Baker’s death. Id. Accordingly, the trial court should have dismissed

plaintiffs’ claims against Hiawatha on the ground that plaintiffs failed to present evidence

sufficient to establish a question of fact on causation.

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III. MEMORIAL HOSPITAL

In Docket No. 318594, plaintiffs challenge the trial court’s grant of summary disposition

in favor of Memorial Hospital premised on the existence of genuine issues of material fact and

the trial court’s allegedly improper adoption of Memorial Hospital’s assertion of the facts.

Plaintiffs also contend that criticisms of their expert, Shiener, comprised “character

assassinations” and were improper.

Initially, plaintiffs contend that Memorial Hospital improperly relied on paraphrasing of

witness testimony but do not identify the specific instances or, more importantly, how they are

inaccurate. It is not the responsibility of this Court to “search the record for factual support of a

party’s claim.” McIntosh v McIntosh, 282 Mich App 471, 485; 768 NW2d 325 (2009).

Plaintiffs have, therefore, abandoned this aspect of their argument. Id. at 485.

Police officers accompanied Brennan-Baker to Memorial Hospital’s emergency room

where the attending nurse, Lisa A. Young, R.N., interviewed him. She asserted that Brennan-

Baker told her that he lied to the officers about his suicidal intentions in order to avoid a ticket

for drinking and driving. And, when asked, Brennan-Baker denied having any suicidal ideation

or plan and denied having been treated for depression. He was later instructed on his discharge

to follow-up with Hiawatha should he become depressed or suicidal. A physician in the

emergency room, Joseph Marvyn M. Neri, D.O., evaluated Brennan-Baker and Brennan-Baker

similarly informed Neri that he lied to the officers to avoid jail. Neri also asked Brennan-Baker

if he had any prior suicidal ideation or treatment for depression and Brennan-Baker again denied

that he had had such thoughts or treatment.

We agree with the trial court’s determination that there was no evidence that any acts or

omissions involving Memorial Hospital’s agents caused Brennan-Baker’s death, which was

simply too remote in time and subject to intervening events. Brennan-Baker hung himself four

days after his evaluation at Memorial Hospital and after a subsequent evaluation by Hiawatha,

where it was determined that he was not in an emergent situation requiring the immediate

delivery of mental health services or hospitalization. Brennan-Baker specifically and repeatedly

denied suicidal ideation to Memorial Hospital’s staff, instead asserting he had lied to the officers

to avoid the consequences for drinking and driving. He then resumed his normal work and social

activities for several days before taking his life. While Shiener opined that a psychiatrist would

have potentially determined the need to hospitalize Brennan-Baker, he could not determine if

such services would have been available. In addition, the dispute and arguments centering on the

subsequent evaluation by Hiawatha, only hours after Brennan-Baker left the emergency room, as

an intervening cause serves to highlight the speculative nature of plaintiffs’ attempt to isolate or

identify the cause of the suicide. In this case, plaintiffs’ evidence amounts to “what if” rather

than “but for.” Hence, the trial court correctly determined that plaintiffs failed to establish a

reasonable inference, based on a logical sequence of cause and effect, that Memorial Hospital’s

actions triggered the causal chain leading to Brennan-Baker’s suicide. See Teal, 283 Mich App

at 394.

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Plaintiffs further criticize Memorial Hospital as having engaged in “character

assassination” of their expert, Shiener. In support of this contention, plaintiffs rely on an

apparently sarcastic remark concerning Shiener’s experience and the number of depositions he

has given. Plaintiffs’ assertion, however, mischaracterizes opposing counsel’s statements when

examined in context:

Okay, so how long would he have been hospitalized? What would that

counseling have looked like such that it would have changed how Brian

responded to the pool crisis on Monday? Was four days enough? If you read

between the lines of Doctor Shiener’s deposition or his affidavit. He’s a very

experienced expert. He is—I don’t know how many dep’s I have of his. He is so

careful about what he says.

In his affidavit he does not say that those interventions would have been

effective to stop this suicide four days later. He says seeing a psychiatrist would

have been effective in stopping the suicide. But he doesn’t tell us what a

psychiatrist[’s] treatment plan would look like other than maybe he would have

been hospitalized and he would have been counseled. But we don’t know how

that would [have] changed things or what it looks like.

Read in context, defense counsel’s comments merely note that Shiener carefully avoided

identifying the specific interventions that should have been made and avoided opining that those

interventions would have prevented Brennan-Baker’s suicide. Further, any reference to the fact

that Shiener’s testimony was found to be deficient in the Teal case involved factual assertions on

the similarity to the testimony involved in this case rather than an assertion that Shiener is simply

not worthy of belief. See Teal, 283 Mich App at 395.

Plaintiffs also contest the propriety of the trial court’s decision to the extent that it relied

on MCR 2.116(C)(8). Notably, in its order granting summary disposition to Memorial Hospital,

the trial court did not identify the subrule that it relied on. Nevertheless, it is clear from the trial

court’s ruling that it relied on MCR 2.116(C)(10). Because the trial court properly dismissed

plaintiffs’ claims against Memorial Hospital under that rule, we need not address this claim of

error.

Plaintiffs also contend the trial court erred in determining that their claim against

Memorial Hospital premised on the acts and omissions by the registration clerk sounded in

medical malpractice and dismissing the claim for failing to comply with the statutory

requirements applicable to medical malpractice claims. Plaintiffs argue they should have been

afforded the opportunity to amend their complaint and pleadings to correct any deficiencies.

However, even assuming that the trial court erred when it determined that the registration clerk

was a medical professional subject to claims of medical malpractice, any error would not warrant

relief. See Gleason v Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003) (“A trial

court’s ruling may be upheld on appeal where the right result issued, albeit for the wrong

reason.”).

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Plaintiffs argue the registration clerk negligently collected and conveyed Brennan-

Baker’s history and comments to the hospital staff. However, there is no record evidence that

the registration clerk received the information that plaintiffs contend had to be relayed to the

medical staff. Plaintiffs also failed to present any evidence that the clerk had a common law duty

to collect and convey the information at issue; indeed, there is no evidence that the clerk had any

obligation—even as a matter of employment duties—to do anything other than collect a person’s

basic identifying and insurance information. Contrary to Brennan’s assertions, Nathan Grenfell,

the officer accompanying Brennan-Baker to the emergency room, denied informing the

registration clerk that Brennan-Baker was “suicidal.” Rather, he said he introduced Brennan-

Baker to the clerk and informed her he was “having a rough day” and would like to speak with

someone from Hiawatha. The officer denied using the term “suicidal.” In addition, Brennan

contradicted her own allegations at her deposition. She testified that Brennan-Baker was

completing initial paperwork when she arrived at the emergency room. She said that the officers

spoke to a nurse and denied seeing them speaking with the registration clerk. Notably, Brennan

said she spoke to the registration clerk but only to inquire if she needed to pay for the services

and she did not convey any relevant history or information to the clerk.

Notwithstanding these limitations, even if the clerk had a duty to collect and convey

information to the medical personnel who actually treated Brennan-Baker, plaintiffs failed to

present evidence that, but for the clerk’s failure to collect and convey the information, Brennan-

Baker would not have harmed himself. See Case v Consumers Power Co, 463 Mich 1, 6; 615

NW2d 17 (2000) (stating that causation is an element of every negligence claim). The record

shows that the medical personnel who actually treated Brennan-Baker interviewed him and asked

him for the necessary information. Therefore, the clerk’s failure to convey any of the

information provided from her interview with Brennan-Baker could not be the basis for any

deficiency in the information held by the staff.

Plaintiffs further contend they should be afforded the opportunity to amend their

pleadings and conduct additional discovery to cure any deficiencies. “Leave to amend the

pleadings should be freely granted to the nonprevailing party upon a grant of summary

disposition unless the amendment would be futile or otherwise unjustified.” Lewandowski v

Nuclear Mgt Co, LLC, 272 Mich App 120, 126-127; 724 NW2d 718 (2006). A court may deny a

motion to amend a complaint “for particularized reasons, such as undue delay, bad faith, or

dilatory motive on the part of the movant, a repeated failure to cure deficiencies in the pleadings,

undue prejudice to the opposing party by virtue of allowing the amendment, or the futility of the

amendment.” Boylan v Fifty Eight LLC, 289 Mich App 709, 728; 808 NW2d 277 (2010). Here,

because plaintiffs failed to present evidence to establish causation, it would be futile to give

plaintiffs an opportunity to amend the pleadings to more clearly state their claim against the

clerk.

Finally, Brennan asserts, as an individual claim, that she has established the elements for

a claim of negligent infliction of emotional distress. Brennan contends it was unnecessary that

she witness the alleged negligent acts. Rather, she asserts, it was only necessary for her to

observe the shocking and resultant injuries.

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“Michigan has recognized a cause of action based on negligence in a parent who

witnesses the negligent infliction of injury to his or her child and suffers emotional distress as a

consequence.” Wargelin v Sisters of Mercy Health Corp, 149 Mich App 75, 80; 385 NW2d 732

(1986). To establish a claim for bystander liability, the following four elements must be

established: “(1) the injury threatened or inflicted on the third person must be a serious one, of a

nature to cause severe mental disturbance to the plaintiff; (2) the shock must result in actual

physical harm; (3) the plaintiff must be a member of the immediate family, or at least a parent,

child, husband or wife; and (4) the plaintiff must actually be present at the time of the accident or

at least suffer shock fairly contemporaneous with the accident.” Id. at 81 (quotation marks and

citation omitted).

The trial court correctly dismissed Brennan’s individual claim. Citing Gustafson v Faris,

67 Mich App 363; 241 NW2d 208 (1976), this Court in Pate v Children’s Hosp of Mich, 158

Mich App 120, 123; 404 NW2d 632 (1986), stated, “Gustafson clearly contemplates a sudden,

brief, and inherently shocking accidental event which causes the injury or death, which

contemporaneously, and by its very nature, results in emotional and physical injury to the

plaintiff.” While premised on a different medical need, in Pate as “[i]n this case, plaintiff has

alleged that [the] death was caused by defendants’ negligent omissions two days earlier when the

defendants failed to admit decedent for care and observation relative to a[n] . . . ailment, failed to

obtain an adequate history, failed to diagnose that decedent was suffering from a [medical

condition], and failed to obtain an expert consultation relative to decedent’s [medical]

condition.” Id. at 124. As noted by this Court, and applicable to the factual circumstances

alleged in this case:

What is missing from these allegations is the contemporaneous infliction of a

tortious injury that could be described as an inherently shocking event. All that

the plaintiff has alleged are negligent omissions in the form of nonobservable

events that occurred two days prior to the decedent’s death. As defendants point

out, while presence at the side of a loved one at the time of [his or] her death is

certainly a grievous event, without more it is simply not the sort of inherently

shocking and sudden event to which the doctrine of bystander recovery for

emotional distress and resulting physical injury was intended to apply.

***

[T]he fact remains that in this case it was not tortious acts, but instead allegedly

tortious omissions which resulted in plaintiff’s [son’s] death. These alleged

omissions were neither inherently shocking and sudden nor were they “fairly

contemporaneous” with the emotional trauma suffered by the plaintiff. The

elements of the tort pleaded in this case clearly require an intentional or reckless

act or an inherently shocking or sudden act or event in order to state a viable

cause of action. [Id. at 124-125.]

Because this case involves omissions rather than acts, the trial court properly dismissed

Brennan’s individual claim for the intentional infliction of emotional distress.

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IV. CONCLUSION

The trial court did not err when it dismissed plaintiffs’ claims against NorthCare and

Memorial Hospital. However, it erred when it denied Hiawatha’s motion for summary

disposition. Accordingly, we affirm in part, reverse in part, and remand for entry of an order

dismissing plaintiffs’ claims against Hiawatha.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.

/s/ William B. Murphy

/s/ David H. Sawyer

/s/ Michael J. Kelly

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