The State of Michigan Court of Appeals (“Michigan Appellate Court”) stated in its unpublished opinion dated June 17, 2021: “Turning to plaintiff’s remaining claims, these essentially entail an allegation of negligence premised on the theory that despite defendants’ awareness that Elissabeth required her food to be cut into bite-sized pieces, she was negligently provided with pieces of food that were not bite-sized, particularly a 1½-inch long piece of polish sausage. There is abundant evidence in the record that defendants had been informed of Elissabeth’s need to have her food cut into bite-sized pieces, and the record reflects that this requirement was included in the special instructions on Elissabeth’s dining ticket that was to be consulted as part of serving each of her meals. Thus, the pertinent question is whether Elissabeth’s food was actually cut into pieces small enough to be considered bite-sized and not whether her various medical conditions actually required her food to be bite-sized because that determination had already been made.”

“Assessing whether a piece of food is bite-sized merely involves an ordinary estimation of size that is well within the common knowledge and experience of the average lay person; countless numbers of people make such determinations multiple times a day, whether for themselves or others in their care. It does not require any special medical knowledge. Thus, this claim presents one of alleged ordinary negligence because it is a situation where the reasonableness of the actions at issue “can be evaluated by lay jurors, on the basis of their common knowledge and experience.”

However, “for the jury to determine whether defendants properly rendered aid to Elissabeth, including the timing of the 911 call, also implicates medical judgment because such a determination requires consideration of Elissabeth’s individualized medical needs and knowledge of the proper medical response to an individual with Elissabeth’s conditions when choking. To determine the reasonableness of defendants’ actions of attempting to dislodge the piece of food caught in Elissabeth’s airway by performing the Heimlich maneuver and using suction prior to calling 911 raises questions of medical judgment that are beyond the realm of common knowledge and experience. To make this determination the jury would have to know the manner of assistance appropriate when considering Elissabeth’s individualized needs, abilities, and the fact that she is nonverbal. Therefore, “the reasonableness of the action can be evaluated by a jury only after having been presented the standards of care pertaining to the medical issue before the jury explained by experts,” and this claim sounds in medical malpractice.”

Furthermore, “a lay juror could not be expected to know from common knowledge and experience how to properly supervise, assist, or feed a person with Elissabeth’s conditions and individualized medical needs. Accordingly, a jury could only assess the reasonableness of these actions “after having been presented the standards of care pertaining to the medical issue before the jury explained by experts,” and medical judgement beyond the realm of common knowledge and experience was therefore involved with respect to this claim. Bryant, 471 Mich at 422-423. Accordingly, the trial court did not err by concluding that plaintiff’s claims regarding defendants’ supervision and assistance of Elissabeth sound in medical malpractice, not ordinary negligence.”

The Michigan Appellate Court concluded: “a jury can rely on common knowledge and experience to determine whether defendants’ response with respect to the size of the pieces of food served to Elissabeth was sufficient. Id. Because no medical judgment was involved, this is a claim of ordinary negligence. Id. at 422. The trial court erred by concluding otherwise, and we reverse the trial court’s ruling with respect to this claim.”

Source Estate of Elissabeth Halabicky v. Lapeer County Medical Care Facility, COA No. 352793.

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