Volume XXIII, No. 9
March 31, 2011

From the Co-Editors
James L. Borin & Simeon R. Orlowski

CAN NEGLIGENT POST-ACCIDENT MEDICAL PROVIDERS BE NAMED
AS NONPARTIES AT FAULT? COURT OF APPEALS SAYS “NO”.

CONTRIBUTOR – CHARLES A. HARRISON, III

On February 24, 2011, the Michigan Court of Appeals issued an unpublished decision in Johnson
v Abrams, et al (Docket #287906), which deals directly with the issue of whether medical providers who
negligently contribute to injuries claimed as damages by plaintiff may be named as nonparties at fault by a
defendant who allegedly caused the initial injury. This was the first decision to address the issue since Slager
v Kid’s Kourt, LLC, _____ Mich App _____; _____ NW2d _____ (2010). As Law Fax noted at the time (see
Comparative Fault, Immunity and Multiple or Successive Tortfeasors: A New Wrinkle?, Volume XXII, No. 25),
this published 2 to 1 decision seemed to create as many questions as it answered regarding the interaction
between the Michigan comparative fault statutes (MCL 600.2957 and MCL 600.6304, primarily) and a number
of basic common law precepts. Perhaps because of its peculiar procedural outcome, Slager was not appealed
to the Supreme Court, which will likely be called upon to resolve these questions in the not-too-distant future.
The Johnson case may well be the vehicle for this.
The plaintiffs in Johnson are the personal representatives of the estate of Richard Anthony Jackson, who
was injured when his car collided with a vehicle owned by defendant, EMCEA Transport, and driven by
defendant, Peter Abrams. Mr. Jackson filed a third party negligence claim against them and a first party claim
against defendant, Titan Insurance Company. Mr. Jackson subsequently underwent accident-related disc
surgery at a Detroit Medical Center hospital where he died as a result of post-extubation breathing problems.
The defendants filed a notice of nonparty at fault against the DMC staff members involved and the plaintiffs
amended their complaint to add a claim for wrongful death.
Plaintiffs moved to strike the notice of non-party at fault on four grounds:
1. The common law principle that a tortfeasor is liable for all foreseeable injuries
arising from his conduct, including damages resulting from subsequent medical
treatment;
2. Medical providers are “successive tortfeasors” not “joint tortfeasors” and therefore
not appropriately subject to comparative fault statutes;
3. Defendants failed to reasonably specify the identity and factual basis for the alleged
nonparties at fault as required by MCR 2.112(K)(3)(b);
4. Defendants failed to comply with medical malpractice pleading requirements by way
of notices of intent and affidavits of merit.
The trial court struck the notice of nonparty at fault on the fourth basis: defendants failed to comply with
the medical malpractice procedural requirements.
It should be noted that the trial court proceedings and most of the subsequent appellate activity took
place without the benefit of the Slager decision, which was issued relatively late in the pendency of the appeal.
The unanimous Johnson per curiam opinion said that Slager, its “gaps” notwithstanding, dictated affirmance
of the trial court on this issue, albeit for different reasons:
“We conclude that the comparative fault statutes do not allow for a finding of liability
on behalf of the medical providers…(based on Slager)… Admittedly, Slager did not
address the longstanding precedent that medical negligence was a foreseeable
consequence of any tort requiring medical care and not actionable. Likewise,
Slager did not tackle the thorny procedural issues raised by the interplay of the presuit
jurisdictional affidavit requirements of MCL 600.2912(b)(1) and MCR
2.112(k)(3)(b). However, the relevant and controlling precedent established by
Slager is that MCL 600.2957 allows a notice of non-party at fault against any party,
immune or not, who contributes to a single injury. As the court stated, ‘(w)e find
nothing in MCL 600.2957 that conflicts with our assessment that the comparative
fault statutes are inapplicable with respect to fact patterns entailing multiple torts
separated in time, multiple torts separated by individual causal chains, and multiple
torts which did not produce a single, indivisible injury’.” Johnson, slip op at 4.
As with Slager, the analysis is that:
“ ‘…any negligent conduct by (the alleged non party at fault) constituted a
subsequent, separate tort that initiated a new causal chain leading to its own set of
damages. However, on remand, and under general principles of tort law, plaintiff
will have to prove by a preponderance of the evidence that any claimed damages
were caused solely by defendants’ negligence.’ ” Johnson, slip op at 4, quoting
Slager, slip op at 9-10.
Unfortunately, the second sentence in the quote from Slager is not an entirely accurate statement of the
general principles of tort law, although it greatly works to the advantage of the defendant. Actually, the common law is that the plaintiff only has to prove that defendant’s negligence was a proximate cause, not the sole cause, of her claimed damages in order to recover. There can be more than one proximate cause. As Judge Murray’s dissent in Slager points out, this is an essential aspect of every nonparty at fault case:
“…the majority errs in holding that the comparative fault statutes are inapplicable to
this case. The parents’ alleged failure to take the child to the prescribed follow-up
care is not a “separate tort that initiated a new causal chain leading to its own set
of damages.” Rather, as plaintiff’s complaint itself makes clear, the alleged
permanent injury to the child’s finger is an element of the damages plaintiff seeks
to recover against defendants. Based on (defendant’s medical expert’s)
statements, surely there is an argument to be made that plaintiffs at least in part
caused that damage by breaching their duty to provide proper medical care to their
son. Consequently, the injury at the child care facility, the immediate harm that was
caused, and any lasting damage are all part of plaintiff’s lawsuit, and as in all
nonparty at fault cases, the defendant is asserting that more than one potential
person caused at least some of the damages at issue.” Slager dissent, slip op
at 9.
As we noted when Slager came out, “dividing” the injury claimed as plaintiff’s damages the way it does,
as a matter of law, is better for the defendant than the defendant being required to prove the percentage of
damage ascribable to a nonparty at fault. “Indivisible” injuries are plaintiffs’ bread and butter. Mi Civ JI 50.11,
Inability to Determine Extent of Aggravation of Injuries, requires the jury to divide the injury, not the court. If the jury cannot make this difficult determination, the plaintiff must be compensated for the entire claimed injury. No wonder the Slager defendant did not appeal its appellate “loss”.
The Johnson opinion indicates that its plaintiffs will have the same burden as the Slager plaintiff going
forward, but eschews the “caused solely” formulation, opting for “proximally caused”, Johnson, slip op at 5.
Of course, there is no such legal concept as “proximal” cause. The word should apparently be
“proximate.” But by definition, under general principles of tort law, “proximately caused” means something
different from “solely caused”.
This is an issue that seems sure to be addressed by the Supreme Court. It seems most likely that the
outcome will be along the lines of Judge Murray’s dissent in Slager.

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GARAN LUCOW MILLER
GRAND RAPIDS SPRING BREAKFAST SEMINAR
April 13, 2011 at Frederik Meijer Gardens and Sculpture Park

The Grand Rapids office of Garan Lucow Miller P.C. is pleased to present its Annual Spring Breakfast
Seminar on April 13, 2011 at the Frederik Meijer Gardens and Sculpture Park, located at 1000 East Beltline,
NE in Grand Rapids {(616) 957-1580}.
Comprehensive written materials will be distributed to all who attend.
After the seminar, feel free to enjoy all of the open indoor and outdoor garden areas as our guest, including the exciting Butterfly Exhibit! In addition, a membership to Frederik Meijer Gardens and Sculpture Park will be
presented to two lucky seminar attendees, along with day passes to enjoy this lovely venue.

If you are able to attend this complimentary annual event, please register via e-mail to:
lbeatty@garanlucow.com or phone Lynn Beatty at (616) 742-5500 or (800) 494-6312 for reservations.
We look forward to seeing you!

8:00 – 8:25 am Registration and Continental Breakfast
8:25 – 8:30 am Welcome and Introduction
David N. Campos, Moderator
8:30 – 9:00 am The Three Phases of Surveillance
Speaker: Bob Chapman
Blue Diamond Investigations, LLC
9:00 – 9:20 am Premises Liability Update
Lugo v Ameritech – Chinks in the Armor Who will be Deemed an
Owner of an Animal that Causes Injury? Social Host Claims – Narrow
Avenues for Recovery if the Facts are Right
Speaker: David A. Couch
9:20 – 9:40 am Adjusters and Their Estate Planning
How to Avoid the 6 most Common Estate Planning Mistakes Medicaid
Planning Special Needs New Tax Laws
Speaker: Tara L. Velting
9:40 – 10:00am Coverage Issues
Fraud Theft Joyriding Excluded Drivers Excluded Drivers
Priorities Parked Vehicles Alighting ORV’s UM/UIM
Speaker: Thomas G. Herman
10:00 – 10:15 am Break
10:15 – 10:35 am The Medical Marihuana Controversy
Overview of Michigan Medical Marihuana Act How to Obtain It Compensable Benefit in
Michigan under the No-Fault Act?
Speaker: Sarah L. Walburn
10:35 – 10:55 am No-Fault Home Accommodation Claims
Griffith v. Wilcox
Speaker: Emily L. Partridge
10:55 – 11:15 am Third-Party Auto Threshold & Renewed Importance of Surveillance
Life After “McCormick” C Surveillance and “the Pay Off”
Speaker: L. Ladd Culbertson
11:15 – 11:45 am Michigan Auto No-Fault Update
Case Law Update Year in Review and Anticipated
Future Case Law Development
Speaker: David N. Campos
11:45 – noon Questions and Answers

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GARAN LUCOW MILLER
INDY CITY SEMINAR – INDIANA & MICHIGAN LAW
May 18, 2011 at the Marriott Downtown Indianapolis

Garan Lucow Miller, P.C. is pleased to present our sixth annual seminar covering Indiana and
Michigan Law on May 18, 2011 at the Marriott Downtown Indianapolis, 350 W. Maryland Street,
Indianapolis, IN 46225 (317) 822-3500.
The day will begin with a continental breakfast and registration at
8:30 a.m. followed by the program. Comprehensive written materials will be distributed to all seminar
attendees.
If you are able to attend this complimentary event, please register via e-mail to Eileen Carty at:
ecarty@garanlucow.com or phone Ms. Carty at (800) 875-7600 for reservations. We hope to see you there!

8:30 – 8:55 Continental Breakfast & Registration
8:55 – 9:00 Welcome and Introduction
Speaker: David A. Couch
9:00 – 9:30 First Party Indiana Law Updates
Speaker: Gregory M. Bokota
9:30 – 10:00 Third Party Indiana Law Updates
Speaker: Jennifer L. McCloskey
10:00 – 10:30 Using Social Networking Sites as a Discovery Tool
Speaker: David A. Couch
10:30 – 10:45 Break
10:45 – 11:15 Michigan First Party No-Fault (PIP) Updates
Speaker: David N. Campos
11: 15 – 11:45 Criminal Defense in Catastrophic Injury Cases,
& the Impact of Criminal Restitution on Civil Liability and Subrogation
Speaker: L. Ladd Culbertson
11:45 – 12:00 Michigan Third Party Automobile Negligence Updates
Speaker: David A. Couch
12:00 – 12:30 Panel Discussion on Deposition Strategies and Tips for Testifying Effectively
Moderator: David A. Couch
12:30 – 1:00 Question and Answer Session
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UPCOMING SEMINARS
The Troy Breakfast Seminar will be held on Thursday October 27, 2011 at the Troy Marriott.
Please watch Law Fax for further information.

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