Estate of Samuel Corrado v. Karen Rieck ( 2022 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
MEYERS v RIECK
Docket No. 162094. Argued on application for leave to appeal January 12, 2022. Decided
July 7, 2022.
Lesley Meyers, personal representative of the estate of Samuel Corrado, filed an action
against Karen Rieck; Radi Gerbi; Shelby Nursing Center Joint Venture, doing business as Shelby
Nursing Center; and others in the Macomb Circuit Court, alleging that defendants were negligent
and had committed medical malpractice in treating Corrado. Corrado, the decedent, was a patient
at Shelby Nursing Center, a nursing home, in 2014. Corrado had been prescribed a feeding tube
due to a medical condition that made it difficult for him to swallow. On June 2, 2014, Gerbi, a
nurse employed by Shelby Nursing Center, went to Corrado’s room to administer the feeding tube,
but after noticing that Corrado had vomited, he did not administer the feeding tube. Later, Gerbi
heard Corrado calling for help, and he entered Corrado’s room and found that he had vomited
again. The nursing home had a standing order for patients with nausea that directed staff to, among
other things, administer an antinausea medication and to notify the patient’s doctor immediately if
the patient had more than one episode of vomiting in a 24-hour period. Pursuant to the standing
order, Gerbi administered the antinausea medication to Corrado. Gerbi also attempted to call a
physician, but when he was unable to reach the physician he went on break instead. Meyers,
Corrado’s daughter, who had been in contact with Corrado throughout the day, called the nursing
home to have someone sent to Corrado’s room. When she was unsuccessful, Meyers went to the
nursing home herself, where she found Corrado having difficulty breathing. Corrado was taken to
the hospital, where he died from hypoxia due to aspiration. In the action, plaintiff alleged both
ordinary negligence and medical malpractice. During discovery, plaintiff learned of the standing
order and moved to amend the complaint to add to its ordinary-negligence claim allegations that
Gerbi had failed to comply with the standing order to contact a physician after Corrado’s second
vomiting episode. In response, Shelby Nursing Center moved to dismiss the new claim, arguing
that the standing order was not evidence of ordinary negligence, could not be used to establish the
standard of care in a medical malpractice claim, and could not be admitted as evidence in support
of a medical malpractice claim. The trial court, James M. Maceroni, J., granted plaintiff’s motion
to amend and denied Shelby Nursing Center’s motion to dismiss. Shelby Nursing Center sought
leave to appeal, and the Court of Appeals granted the application. The Court of Appeals, RIORDAN,
P.J., and FORT HOOD and SWARTZLE, JJ., reversed in a published per curiam opinion. 333 Mich
App 402 (2020). The Court of Appeals held that plaintiff’s proposed amended claim sounded in
medical malpractice, rather than ordinary negligence. The Court of Appeals also concluded that
the standing order could not be used to establish the standard of care for a medical malpractice
claim and could not be admitted as evidence at trial. Plaintiff sought leave to appeal in the
Michigan Supreme Court, and the Court ordered and heard oral argument on whether to grant
plaintiff’s application for leave to appeal or take other action. 507 Mich 958 (2021).
In a unanimous opinion by Justice VIVIANO, the Supreme Court, in lieu of granting leave
to appeal, held:
Plaintiff’s proposed amendment sounded in medical malpractice, and the standard of care
in a medical malpractice action may not be established by the internal rules and regulations of the
defendant medical provider. Those rules and regulations, however, may be admissible as evidence
in determining the standard of care, provided that the jury is instructed that they do not constitute
the standard of care.
1. The threshold question in this case was whether plaintiff’s proposed amendments to the
complaint sounded in ordinary negligence or medical malpractice. In general, medical malpractice
claims arise within the course of a professional relationship and raise questions involving medical
judgment rather than issues that are within the common knowledge and experience of the fact-
finder. Plaintiff argued that no medical judgment was required to follow the standing order
because it was mandatory and did not afford Gerbi any discretion or opportunity to exercise
medical judgment. A claim that concerns the failure to monitor and assess risks to a patient usually
requires specialized medical knowledge and therefore sounds in medical malpractice. On the other
hand, if a nurse fails to take any action to address a known problem or hazardous condition, then
the claim might sound in ordinary negligence. But plaintiff’s claim did not simply allege that
Gerbi failed to take any action in light of a known risk; rather, plaintiff alleged that Gerbi was
negligent because he failed to take a specific action in response to the circumstances. That specific
action was set forth in the standing order. To assess whether Gerbi should have notified the
physician sooner, the fact-finder would need to know about the risk of acute aspiration in a patient
with a feeding tube who had vomited twice and the specific steps that needed to be taken to address
that risk. That assessment necessarily implicated medical judgment beyond common knowledge
and experience. Therefore, the gravamen of the proposed amendments sounded in medical
malpractice.
2. Generally, to prove medical malpractice, the plaintiff must establish that the defendant
owed a 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.
In this case, plaintiff contended that the standard of care applicable to Shelby Nursing Center’s
nursing staff was that they had to comply with the provisions of the standing order. Plaintiff’s
argument failed because longstanding caselaw holds that a private entity’s internal rules do not fix
the standard of care regarding its duty to others. This held true whether the argument was that the
order established the standard of care or that the standard of care was to follow the order because
in either case plaintiff sought to hold Shelby Nursing Center liable for the same underlying
conduct: the breach of the actions prescribed by the order. A defendant’s violation of its own rules
does not constitute negligence per se, and the mere allegation that a defendant breached its own
rule or regulation does not, by itself, make out a claim for negligence. Allowing a private
organization’s rules and regulations to establish the standard of care would permit that organization
to choose the standards under which it would be liable to others. The law neither permits private
entities to legislate away their responsibilities by establishing rules, nor does it impose
discriminating liabilities upon them by reason of their efforts to lessen public danger. This rule
was previously applied in the context of ordinary negligence and naturally extended to medical
malpractice claims.
3. Although a private entity’s own rules and regulations do not establish the standard of
care in a medical malpractice case, it does not follow that those rules and regulations are
categorically inadmissible. In this case, the fact that the standing order did not, by itself, represent
the applicable standard of care did not mean that it was altogether irrelevant in determining the
standard of care. The Supreme Court has recognized in ordinary-negligence cases that an entity’s
internal regulations might constitute some evidence of negligence. Because there is a potential
difficulty in distinguishing between the use of an internal rule or regulation as evidence of the
standard of care and its use to establish the standard of care, a jury that receives this sort of evidence
must be cautioned as to its proper use. Further, a medical provider’s internal rules and regulations
must meet general evidentiary standards, including the rules regarding relevancy, MRE 402, and
probative value, MRE 403.
Judgment reversed in part and affirmed in part, and case remanded to the trial court for
further proceedings.
Justice BERNSTEIN did not participate because he has a family member with an interest that
could be affected by the proceeding.
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
FILED July 7, 2022
STATE OF MICHIGAN
SUPREME COURT
LESLEY MEYERS, Personal Representative
of the ESTATE OF SAMUEL CORRADO,
Plaintiff-Appellant,
v No. 162094
KAREN RIECK, RADI GERBI, R.N.,
JESSICA JOHNSON, L.P.N., BEAUMONT
NURSING HOME SERVICES, INC., and
PINEHURST EAST, INC.,
Defendants,
and
SHELBY NURSING CENTER JOINT
VENTURE, doing business as SHELBY
NURSING CENTER,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH (except BERNSTEIN, J.)
VIVIANO, J.
Lesley Meyers brings this action on behalf of the estate of Samuel Corrado, claiming
that defendants were negligent and committed medical malpractice in their treatment of
Corrado, who died while a resident at defendant Shelby Nursing Center. In the proceedings
below, plaintiff moved to amend its complaint to add allegations concerning one of
defendant’s standing orders, which established a procedure for treatment of patients with
Corrado’s condition. Plaintiff’s new allegations are that defendant’s nurse violated the
standing order and that this violation gives rise to an ordinary-negligence claim.
We hold that plaintiff’s new allegations sound in medical malpractice. We further
hold that the standing order cannot establish the standard of care for a medical malpractice
action. Therefore, to the extent that the new allegations raise a claim based solely on the
violation of the standing order, that claim must fail. However, to the extent that the new
factual allegations concerning the standing order are relevant to any other claim in
plaintiff’s original complaint, the standing order may be used as evidence of the standard
of care if it is otherwise admissible and the jury is instructed that the order does not itself
constitute the standard of care.
I. FACTS
Corrado suffered from dysphagia, which is a medical condition that makes it
difficult to swallow. Because this condition impeded his ability to eat, Corrado’s doctor
ordered a feeding tube. After placement of the tube, Corrado was admitted to defendant
nursing home on March 20, 2014. His recovery was progressing, and he was scheduled
for discharge on June 17, 2014.
2
The nursing home had a standing order on the treatment of patients with nausea. 1
The order stated that if the patient has “[n]ausea with or without vomiting,” staff were to:
Check for fecal impaction. If impacted remove impaction manually
and give fleets enema. If nausea and/or vomiting persist, give Tigan 100 mg
suppository or 100 mg i.m. one dose only . . . . Notify physician next office
day for a single episode.
Report immediately to physician if: . . .> 1 episode within 24 hours.
On June 2, 2014, at about 5:00 p.m., defendant Radi Gerbi, a registered nurse working for
Shelby Nursing Center, arrived in Corrado’s room to administer medication and a feeding
tube. 2 At that time, he noticed that Corrado had vomited, which Corrado confirmed.
Consequently, he did not administer the medication or feeding tube but did check
Corrado’s vitals, monitor him for a period, and notify other nurses. About 90 minutes later,
Gerbi heard Corrado calling for help. Gerbi entered Corrado’s room and found him
hunched over a small tub, in which Corrado had just vomited. At this point, Gerbi
administered Tigan (a medication used to treat nausea and vomiting) pursuant to the
1
A standing order is
a written document containing rules, policies, procedures, regulations, and
orders for the conduct of patient care in various stipulated clinical situations.
The standing orders are usually formulated collectively by the professional
members of a department in a hospital or other health care facility. Standing
orders usually name the condition and prescribe the action to be taken in
caring for the patient, including the dosage and route of administration for a
drug or the schedule for the administration of a therapeutic procedure.
Standing orders are commonly used in intensive care units, coronary care
units, and emergency departments. [Mosby’s Medical Dictionary (2021).]
2
While Gerbi is a defendant in the underlying case, he is not an appellee in the present
appeal.
3
standing order and monitored Corrado. About 20 to 30 minutes after the second vomiting
episode, Gerbi called a physician pursuant to the standing order. He could not reach the
physician so he notified his supervisor and then took his 30-minute break.
In the meantime, Meyers (who is Corrado’s daughter) had been in contact with
Corrado throughout the day. After unsuccessfully attempting to have someone sent to
Corrado’s room, she went to the nursing facility herself, arriving at around 6:45 p.m., after
the Tigan had been administered. Meyers found Corrado violently shaking and struggling
to breathe. Emergency personnel arrived in Corrado’s room about ten minutes later and
rushed him to the hospital, where he died from hypoxia due to aspiration.
Plaintiff brought the present lawsuit against the nursing home, Gerbi, and other
defendants on behalf of Corrado’s estate. The complaint contains ordinary-negligence
claims and medical malpractice claims encompassing all the events that occurred and
various alleged breaches of the relevant standards of care. In particular, the complaint
alleged that Gerbi and other defendants failed to adequately monitor Corrado and to
provide emergency care, including notifying Corrado’s physician concerning his status.
During discovery, plaintiff learned about the standing order and moved to amend the
complaint to include allegations concerning the standing order and “to add as part of its
claim for ordinary negligence the fact that Nurse Gerbi failed to comply with [the] standing
order to contact the physician on call.” 3 In response, defendant moved to dismiss the new
claim, arguing that the standing order was not evidence of ordinary negligence and could
3
The amended complaint was never filed.
4
not be used to establish the standard of care in a medical malpractice claim. Because the
standing order could not be used as the standard of care, defendant also argued that it could
not be admitted as evidence in support of the claim. The trial court rejected these
contentions, denying defendant’s motion for summary disposition and granting plaintiff’s
motion to amend. It held that the standing order, by its terms, did not require or involve
any medical judgment—the order simply required the nurse to notify a physician.
Therefore, “whether defendant failed to follow the Standing Order is a question of
reasonableness and sounds in negligence, and not medical malpractice.”
On appeal, the Court of Appeals reversed in a published opinion. It first held that
the proposed claim sounds in medical malpractice rather than ordinary negligence because
plaintiff’s core contention was that Gerbi failed to take specific actions in response to
Corrado’s second episode of vomiting. The Court wrote, “A lay fact-finder would not
know that a physician should be immediately informed when a patient vomits twice in a
matter of hours and could not rely solely on common knowledge and experience to
determine whether it was reasonable for Gerbi to wait at least 20 minutes before attempting
to consult a doctor about Corrado’s status.” Estate of Corrado v Rieck, 333 Mich App 402,
412; 960 NW2d 218 (2020). Thus, according to the Court, because this claim involved
questions outside the jury’s common knowledge, it sounded in medical malpractice.
Further, the Court concluded that the standing order could not be used to establish the
standard of care for a medical malpractice claim and could not be used as evidence at trial.
The Court therefore reversed the trial court’s denial of defendant’s motion for summary
disposition and remanded for further proceedings.
5
Plaintiff sought leave to appeal in our Court, and we ordered argument on the
application, requiring briefing on “(1) whether the proposed claim based on a violation of
the standing order sounds in medical malpractice or ordinary negligence; and (2) whether
evidence of the standing order is admissible at trial.” Meyers v Rieck, 507 Mich 958 (2021).
II. STANDARD OF REVIEW
A trial court’s decision on a motion for summary disposition is reviewed de novo.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019).
III. ANALYSIS
In this case, we review the trial court’s denial of summary disposition to defendant
on the basis that plaintiff’s amended allegations sufficiently raise a claim of ordinary
negligence regarding the violation of the standing order. Two issues have arisen below:
(1) whether plaintiff’s new claim sounds in ordinary negligence or medical malpractice and
can succeed when it alleges a bare violation of the standing order; and (2) whether a private
entity’s internal rules or regulations, like the standing order here, may be admissible
evidence.
A. NATURE OF THE CLAIM AND THE STANDARD OF CARE
The threshold question addressed by the Court of Appeals and in the parties’
briefing here is whether plaintiff’s amendments sound in ordinary negligence or medical
malpractice. In general, a medical malpractice claim is one “brought against someone who,
or an entity that, is capable of malpractice,” involving actions that occurred “within the
course of a professional relationship,” and which “raise questions involving medical
judgment” rather than “issues that are within the common knowledge and experience of
6
the [fact-finder].” Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 420, 422; 684
NW2d 864 (2004) (quotation marks and citations omitted). In the present case, the parties
dispute whether the new allegations involve medical judgment. Plaintiff contends that no
medical judgment was required to follow the standing order—the order, according to
plaintiff, was mandatory and left Gerbi no discretion or opportunity to exercise medical
judgment.
To determine the nature of the claim, we seek its “gravamen,” and therefore “we
disregard the labels given to the claim[] and instead read the complaint as a whole . . . .”
Trowell v Providence Hosp & Med Ctrs, Inc, 502 Mich 509, 519; 918 NW2d 645 (2018).
The question here, then, is whether the substance of the new claim relates to matters
involving medical judgment outside “the common knowledge and experience of the [fact-
finder].” Bryant, 471 Mich at 424 (quotations marks and citation omitted). We agree with
the Court of Appeals that the new claim involves medical judgment and therefore sounds
in medical malpractice. As the Court of Appeals explained, our decision in Bryant
indicates that if a nurse fails to take any action to address a known problem or hazardous
condition, then the claim might sound in ordinary negligence. Id. at 431 (“If a party alleges
in a lawsuit that the nursing home was negligent in allowing the decedent to take a bath
under conditions known to be hazardous, . . . 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.”). But a claim that concerns the
failure to monitor and assess risks to a patient—such as, in Bryant, “the risk of positional
asphyxiation posed by bed railings”—usually requires specialized medical knowledge and
therefore sounds in medical malpractice. Id. at 426-427.
7
The present claim, that Gerbi violated the standing order, does not simply allege
that Gerbi failed to take any action in light of a known risk. “Rather,” as the Court of
Appeals explained, “plaintiff alleges that Gerbi was negligent because he failed to take a
specific action in response to the circumstances.” Estate of Corrado, 333 Mich App at
412. That specific action was spelled out in the standing order. In this Court, plaintiff
expressly “concedes that the formulation of Shelby [Nursing] Center’s standing orders
involves just the kind of medical judgment that gives rise to a claim of medical
malpractice . . . .” No doubt this is because, as the Court of Appeals stated, “[a] lay fact-
finder would not know that a physician should be immediately informed when a patient
vomits twice in a matter of hours and could not rely solely on common knowledge and
experience to determine whether it was reasonable for Gerbi to wait at least 20 minutes
before attempting to consult a doctor about Corrado’s status.” Estate of Corrado, 333 Mich
App at 412. In other words, to assess whether the physician should have been notified
sooner, the fact-finder would need to know about the risk of acute aspiration in a patient
with a feeding tube who has vomited twice and the specific steps that must be taken to
address that risk. That assessment necessarily implicates medical judgment beyond
common knowledge and experience. Therefore, the gravamen of the claim sounds in
medical malpractice.
Plaintiff attempts to avoid this conclusion by focusing narrowly on the violation of
the standing order and not the conduct prescribed by the order. But by attempting to
premise liability on the bare violation of a private defendant’s internal rules or regulations,
plaintiff undercuts its claim completely. This is because, as explained below, such rules
and regulations cannot by themselves establish the standard of care. We have applied this
8
rule in the context of ordinary negligence, and today we find that those holdings naturally
extend to medical malpractice actions like the present claim.
The standard of care is a concept applicable to both ordinary negligence and medical
malpractice claims. To prove ordinary negligence, a plaintiff must demonstrate, among
other things, that the defendant owed the plaintiff a duty. Murdock v Higgins, 454 Mich
46, 53; 559 NW2d 639 (1997). Once the duty is established, the “factfinder [then]
determine[s] whether, in light of the particular facts of the case, there was a breach of the
duty.” Id. In that analysis, the fact-finder “determines what constitutes reasonable care
under the circumstances.” Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500;
418 NW2d 381 (1988). Under a medical malpractice theory of liability, the defendant
owes a “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.” Bryant, 471 Mich at 424 (quotation marks and citation omitted). For
nurses like Gerbi, then, the standard of care is “the degree of skill and care ordinarily
possessed and exercised by practitioners of the profession in similar localities.” Cox v Flint
Bd of Hosp Managers, 467 Mich 1, 20-21; 651 NW2d 356 (2002).
Sometimes, however, the applicable standard of care is supplied by a statute or legal
regulation. See, e.g., Holmes v Merson, 285 Mich 136, 139; 280 NW 139 (1938) (“The
generally accepted view is that violation of a statutory duty constitutes negligence per se.”);
Restatement Torts, 2d, § 285, p 20 (“The standard of conduct of a reasonable man may
be . . . established by a legislative enactment or administrative regulation which so
provides[.]”). In such cases, the statute “establishes the standard of care” and “its breach
establishes the first two elements of negligence: duty and breach of duty.” 1 Modern Tort
9
Law: Liability and Litigation (May 2022 update), § 3:79. The violation of such a statute
thus establishes negligence per se, i.e., that the defendant acted negligently. See Westover
v Grand Rapids R Co, 180 Mich 373, 378; 147 NW 630 (1914) (noting that “a violation of
a statute imposed under the police power of the State is negligence per se.”). 4
In the present case, plaintiff protests that she is not asking the Court to treat
defendant’s standing order as a statute establishing the standard of care, the violation of
which constitutes negligence per se. Rather, she contends that “the standard of care
applicable to the defendant’s nursing staff is that the provisions of the standing order
(whatever they might be) must be complied with.” (Emphasis omitted.) But we see no
meaningful distinction between the contention that the standing order establishes the
standard of care and the argument that the standard of care is to follow the standing order.
In both cases, the underlying conduct for which plaintiff seeks to hold defendant liable is
the same: the breach of the actions prescribed by the order itself.
Under our longstanding caselaw, plaintiff’s argument must fail. We long ago held
that a private entity’s internal rules do not “fix the standard of [its] duty to others.”
McKernan v Detroit Citizens’ Street-R Co, 138 Mich 519, 530; 101 NW 812 (1904). That
standard “is fixed by law, either statutory or common.” Id. In other words, a defendant’s
violation of its own internal rule, even if the rule is designed to protect the public, does not
constitute negligence per se. Id. at 528. As such, the mere allegation that a defendant
4
We have held, however, that “violation of a safety or penal statute creates a rebuttable
presumption of negligence” rather than establishing negligence per se. Klinke v Mitsubishi
Motors Corp, 458 Mich 582, 592; 581 NW2d 272 (1998).
10
breached its own internal rule or regulation does not, without more, make out a claim for
negligence. Id. at 530. We have followed this rule in multiple cases. See, e.g., Baker v
Mich Central R Co, 169 Mich 609, 637; 135 NW 937 (1912) (stating that private rules “do
not fix the obligations and liabilities of the master to its servants, nor to third persons and
the public, those obligations, being fixed by law, cannot be diminished by such rules, nor,
ordinarily, increased thereby”); Dixon v Grand Trunk Western R Co, 155 Mich 169, 173-
174; 118 NW 946 (1908) (applying McKernan and holding that negligence could not be
predicated on the failure to enforce a private rule). 5
There are good reasons for this rule. Allowing a private organization’s rules and
regulations to establish the standard of care would permit that organization to choose the
standards under which it would be liable to others. Choosing this course would “send a
signal to [medical providers] that they have a safe harbor from lawsuits if they comply with
[standing medical orders] to the letter, whatever the consequences for the patient.” Fagocki
v Algonquin/Lake-in-the-Hills Fire Protection Dist, 496 F3d 623, 630 (CA 7, 2007). If the
order here, for example, had instructed the nurses to wait a day after the second episode of
5
Other courts have held likewise. See Wal-Mart Stores, Inc v Wright, 774 NE2d 891, 894
(Ind, 2002) (collecting sources and noting that “[t]he law has long recognized that failure
to follow a party’s precautionary steps or procedures is not necessarily failure to exercise
ordinary care”); Cooper v Eagle River Mem Hosp, Inc, 270 F3d 456, 462 (CA 7, 2001)
(“As a general rule in Wisconsin, the internal procedures of a private organization do not
set the standard of care applicable in negligence cases.”); 57A Am Jur 2d, Negligence
(2004), § 174, p 248 (“The failure to comply with a company rule does not constitute
negligence per se; the jury may consider the rule, but the policy does not set forth a standard
of conduct that establishes what the law requires of a reasonable person under the
circumstances.”).
11
vomiting before contacting the physician, we would be reluctant to hold that a nurse
followed the requisite standard of care simply by complying with such a slack order.
Plaintiff’s view might also discourage entities from adopting internal rules that
require a “higher degree of care than the law imposes. . . . [I]f the adoption of such a course
is to be used against him as an admission, he would naturally find it to his interest not to
adopt any rules at all.” McKernan, 138 Mich at 531; see also Buczkowski v McKay, 441
Mich 96, 99 n 1; 490 NW2d 330 (1992) (“Imposition of a legal duty on a retailer on the
basis of its internal policies is actually contrary to public policy. Such a rule would
encourage retailers to abandon all policies enacted for the protection of others in an effort
to avoid future liability.”). In short, the law “neither permits corporations to legislate away
their responsibilities by rules, nor imposes discriminating liabilities upon them by reason
of their efforts to lessen public danger.” McKernan, 138 Mich at 532.
Although we have never addressed whether a private entity’s standing orders can
fix the standard of care in a medical malpractice action, the Court of Appeals has.
Following our caselaw discussed above, the Court of Appeals has held that a hospital’s
internal rules and regulations do not establish the standard of care in malpractice actions.
See Jilek v Stockson, 289 Mich App 291, 306-309; 796 NW2d 267 (2010) (Jilek I), rev’d
on other grounds by 490 Mich 961 (2011) (Jilek II); Gallagher v Detroit-Macomb Hosp
Ass’n, 171 Mich App 761, 764-768; 431 NW2d 90 (1988); Wilson v WA Foote Mem Hosp,
91 Mich App 90, 95; 284 NW2d 126 (1979). As the Court of Appeals has stated, “the
ultimate question is what responsibility has the hospital assumed regarding the care of the
patient. In Michigan, we look to the standard practiced in the community [or similar
12
communities] rather than internal rules and regulations to determine that responsibility in
a malpractice action.” Gallagher, 171 Mich App at 768.
The Court of Appeals’ conclusion appears to reflect the nearly uniform treatment of
this issue across jurisdictions. 6 The Illinois Supreme Court, in one of the leading cases on
the issue, wrote that an internal hospital rule or regulation cannot be “conclusive” of the
standard of care because “ ‘a whole calling may have unduly lagged in the adoption of new
and available devices. It never may set its own tests, however persuasive be its usages.’ ”
6
See, e.g., Quijano v United States, 325 F3d 564, 568 (CA 5, 2003) (“In Texas, . . . hospital
rules alone do not determine the governing standard of care.”); Damgaard v Avera Health,
108 F Supp 3d 689, 698-699 (D Minn, 2015) (“[I]t is not enough for a plaintiff simply to
point to a healthcare provider’s policies and claim they were breached. This conclusion,
of course, flows from the fact a plaintiff asserting medical negligence must establish a
physician breached the standard of care in the relevant medical community—not just at her
hospital.”); Hodge v UMC of Puerto Rico, Inc, 933 F Supp 145, 148 (D Puerto Rico, 1996)
(“Courts in the United States have almost universally held that hospital rules, regulations,
and policies alone do not establish the standard of medical care in the medical
community . . . .”); Reed v Granbury Hosp Corp, 117 SW3d 404, 414 (Tex App, 2003)
(“[A] hospital’s internal policies and procedures do not, alone, determine the standard of
care . . . .”); Moyer v Reynolds, 780 So 2d 205, 208 (Fla App, 2001) (noting that evidence
of breach of an internal rule “does not conclusively establish the standard of care”); Van
Steensburg v Lawrence & Mem Hosps, 194 Conn 500, 506; 481 A2d 750 (1984) (“In this
regard, we point out that hospital rules, regulations and policies do not themselves establish
the standard of care.”); Foley v Bishop Clarkson Mem Hosp, 185 Neb 89, 93; 173 NW2d
881 (1970) (recognizing the general rule that internal regulations “do[] not establish
community standards which may be either more liberal or stricter than the standards set up
by defendant” and that such regulations, “[a]lthough pertinent, . . . standing alone [are]
insufficient”); 41 CJS, Hospitals (2014), § 36, pp 368-369 (“Hospital rules, regulations,
and policies do not themselves establish the standard of care owed a patient or reflect the
community standard of medical care.”) (footnotes omitted); cf. Fisk v McDonald, 167
Idaho 870, 881-882; 477 P3d 924 (2020) (holding that a hospital’s internal policies were
insufficient, alone, to provide a foundation for an out-of-area expert’s testimony on the
community standard of care).
13
Darling v Charleston Community Mem Hosp, 33 Ill 2d 326, 331-332; 211 NE2d 253(1965), quoting The TJ Hooper, 60 F2d 737, 740 (CA 2, 1932). Similarly, as with our
cases above in the context of ordinary negligence, other courts have observed that a
contrary rule would discourage hospitals from establishing higher standards of care than
the community. See Wuest v McKennan Hosp, 619 NW2d 682, 689; 2000 SD 151 (2000)
(“Public policy encouraging standards higher than generally employed in the community
dictates that individual hospital policies are not determinative of the standard of care.”);
see also 3 Modern Tort Law: Liability and Litigation (May 2022 update), § 24:155
(“Frequently such bylaws, in attempting to administer an efficient operation, will require
higher standards than the community will customarily require.”). 7
7
Some cases appear to go the other way, but they are distinguishable. For example, in
Estate of French v Stratford House, 333 SW3d 546, 559 (Tenn, 2011), abrogated by statute
as recognized in Ellithorpe v Weismark, 479 SW3d 818, 820 (Tenn, 2015), the Tennessee
Supreme Court held that “allegations that the [certified nursing assistants] failed to comply
with the care plan’s instructions due to a lack of training, understaffing, or other causes,
constitute claims of ordinary, common law negligence.” French, 333 SW3d at 559. The
rationale was not, however, that the bare violation of the plan was a matter of negligence.
Rather, the court rested its decision largely on the distinct proposition that the violation of
the care plan involved conduct that would not fall within the normal scope of medical
malpractice because the services provided were “routine and nonmedical in nature . . . .”
Id. at 560. Regardless, it does not appear that the parties argued—and the court did not
directly analyze—whether internal rules and regulations could, without more, give rise to
liability. Similarly, in Lucy Webb Hayes Nat’l Training Sch for Deaconesses and
Missionaries v Perotti, 136 US App DC 122; 419 F2d 704 (1969), the court generally
focused on a violation of a municipal regulation. While it did say that the jury could find
negligence on the basis of, among other things, the internal hospital directives, those
directives were only one piece of evidence from which the jury could find for plaintiff. Id.,419 F2d at 710. The court did not suggest that the bare violation of the directive was
enough.
14
Accordingly, a claim that defendant committed malpractice merely by violating its
own internal rule or regulation, without more, must fail because that rule or regulation does
not establish the applicable standard of care. In the present case, the medical malpractice
claim that plaintiff seeks to add to the complaint is premised solely on Gerbi’s violation of
the standing order. 8 Therefore, the Court of Appeals properly reversed the trial court’s
denial of defendant’s motion for summary disposition of the proposed new claim.
B. ADMISSIBILITY OF INTERNAL RULES AND REGULATIONS
The Court of Appeals went further, however, holding that because the standing
order does not establish the standard of care, it was irrelevant to the case and therefore
inadmissible for any purpose. 9 This conclusion was ultimately based on this Court’s order
in Jilek II, 490 Mich 961. We take this opportunity to correct the misapprehension that a
private entity’s internal rules and regulations are categorically inadmissible.
8
As mentioned above, plaintiff never filed the actual amended complaint. But, as noted,
plaintiff has explained at length that the new claim is premised only on the breach of the
standing order. Indeed, the limited nature of the claim is at the center of plaintiff’s
argument that the claim sounds in ordinary negligence because the standing order was
mandatory. For the reasons already discussed, the mandatory nature of the order is
irrelevant because the order cannot itself establish the standard of care.
9
The admissibility question arises even if the new claim is dismissed because the new
factual allegations plaintiff has sought to add concerning the standing order might also be
relevant to plaintiff’s existing claims. For instance, the original complaint alleges that
Gerbi and various defendants failed to adequately monitor Corrado and provide appropriate
emergency care, including notifying Corrado’s physician and calling for assistance. Thus,
regardless of whether the new claim is dismissed, the factual allegations concerning the
standing order may be relevant to the existing claims.
15
In Gallagher, the Court of Appeals noted that while hospital rules and regulations
could not establish the standard of care, they “could be admissible as reflecting the
community’s standard where they were adopted by the relevant medical staff and where
there is a causal relationship between the violation of the rule and the injury.” Gallagher,
171 Mich App at 767. But the hospital rules were not indicative of the standard of care in
Gallagher because they “were more in the nature of . . . administrative guidelines” and,
therefore, were inadmissible. Id. at 768.
In Jilek I, the Court of Appeals relied on Gallagher’s discussion of admissibility.
Jilek I, 289 Mich App at 306-307, 314. The Court also cited numerous out-of-state
decisions, stating that “[n]early all of the states that have published law on the subject
appear to follow the rule that internal policies may be introduced as relevant to the standard
of care but, standing alone, do not fix or establish that standard.” Id. at 309-310. The
dissent in Jilek I criticized the majority for its reliance on Gallagher, characterizing the
earlier decision’s comments on admissibility as dicta. Id. at 316 (BANDSTRA, J.,
dissenting). The thrust of the dissent, however, was that the majority had ignored the
standard of review applicable to the trial court’s evidentiary rulings excluding the internal
hospital rules. Id. at 317. We reversed the Court of Appeals majority in an order mostly
addressing other matters. Jilek II, 490 Mich at 961. In relevant part, we stated, “We also
conclude that the trial court did not abuse its discretion in excluding plaintiff’s proposed
document exhibits at issue for the reasons stated in the analysis of the Court of Appeals
dissenting opinion.” Id.
The resolution in Jilek II thus left this issue in an unsettled state. Reading our order
in Jilek II broadly, the Court of Appeals below held that internal rules and regulations are
16
simply inadmissible. But the Court’s reasoning displays the flaws in such an approach. In
holding that the amended claim sounds in medical malpractice, the Court of Appeals
concluded that the standing order involves medical judgment about the treatment necessary
for a patient in Corrado’s condition. But in declaring the standing order to be inadmissible,
the Court of Appeals indicates that the standing order is irrelevant to determining the
medical standard of care regarding the medical treatment necessary for an individual in
Corrado’s condition. It makes little sense to say that the standing order (or the actions it
prescribes) involves medical judgment about the proper treatment but also has no bearing
on what constitutes the proper treatment.
The fact that the standing order cannot itself represent the applicable standard of
care does not mean that it is altogether irrelevant to determining the standard of care or
whether it was breached. We indicated as much in McKernan when we recognized that
the railroad’s internal “regulation might constitute some evidence” concerning negligence.
McKernan, 138 Mich at 528; see also Van Steensburg, 194 Conn at 506 (“The failure to
follow such rules and regulations is . . . evidence of negligence.”). The same rule is
supported by the overwhelming weight of authority in the context of medical malpractice:
a medical provider’s rules and regulations can be used as evidence to help determine the
standard of care, but they cannot be used as the standard itself without additional evidence.
See, e.g., Quijano, 325 F3d at 568 (“In Texas, a hospital’s internal policies and bylaws may
be evidence of the standard of care, but hospital rules alone do not determine the governing
standard of care.”); see also Darling, 33 Ill 2d at 332 (allowing internal hospital regulations
to be admitted into evidence); Jilek I, 289 Mich App at 309-310 (collecting cases). This is
true even in states, like ours, that generally require expert testimony to establish the
17
standard of care. See, e.g., Dine v Williams, 830 SW2d 453, 456-457 (Mo App, 1992)
(explaining that, “[i]f plaintiffs’ expert had testified to the standard of care of an attending
physician and that the defendants’ conduct fell below that standard, then the rules and
regulations may have been admissible to support the negligent conduct” in the medical
malpractice action despite the fact that expert testimony is necessary to establish the
standard of care); see also Woodard v Custer, 473 Mich 1, 6; 702 NW2d 522 (2005)
(“Generally, expert testimony is required in medical malpractice cases.”).
But courts must be cautious in admitting this evidence. One court explained the
need for caution in the context of ordinary-negligence claims:
Indeed, this court has held that a party’s internal policies and procedure are
admissible as some evidence of the appropriate standard of care. . . .
However, as Professor Wigmore has noted, a difficulty
“arises from the necessity of distinguishing between the use of
such facts evidentially and their use as involving a standard of
conduct in substantive law . . . . To take [the defendant’s]
conduct as furnishing a sufficient legal standard of negligence
would be to abandon the standard set by the substantive law,
and would be improper . . . . The proper method is to receive
it, with an express caution that it is merely evidential and is not
to serve as a legal standard.”
2 J Wigmore, Evidence § 461, at 593 (footnote omitted,
emphasis in original).
Consistent with the Wigmore analysis, this court has held that the jury
receiving such evidence must be cautioned that the existence of an internal
rule does not itself fix the standard of care. [Steinberg v Lomenick, 531 So
2d 199, 200 (Fla App, 1988) (alteration in Steinberg).]
We agree with these concerns and believe that any jury receiving such evidence must be
instructed as to its proper use. In addition, we emphasize that a medical provider’s internal
rules and regulations, like the standing order, must meet general evidentiary standards,
18
including that the evidence be relevant, MRE 402, and its probative value must not be
outweighed by the concerns listed in MRE 403. A particular rule or regulation, of course,
might be irrelevant to the question at hand in a given case. But we hold today that internal
rules and regulations are not categorically inadmissible as irrelevant.
Given this analysis, the Court of Appeals erred to the extent it held that the standing
order was inadmissible in this case because all such orders are irrelevant to the standard of
care. 10
IV. CONCLUSION
For the reasons above, we hold that plaintiff’s amended claim concerning the
violation of the standing order sounds in medical malpractice. The claim is premised on
the bare violation of the standing order. But because the standing order does not establish
the standard of care applicable to the case, the new claim must fail. However, this
conclusion does not mean the standing order is irrelevant in determining the standard of
care with regard to any other claims in the original complaint. A private entity’s internal
rules or regulations, like the standing order, are not inadmissible simply because they do
not alone establish the standard of care. If they meet the rules governing the admission of
evidence and if the jury is instructed as to their proper use—i.e., that they are evidence of
the standard of care and do not fix the standard itself—then they might be admitted. In
light of these holdings, we reverse the Court of Appeals in part but affirm its judgment
reversing the trial court’s denial of defendant’s motion for summary disposition with regard
10
We do not decide here whether the particular standing order at issue meets the applicable
criteria for admission.
19
to the new allegations concerning the standing order. We remand to the trial court for
proceedings not inconsistent with this opinion.
David F. Viviano
Bridget M. McCormack
Brian K. Zahra
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
BERNSTEIN, J. did not participate because he has a family member with an interest
that could be affected by the proceeding.
20