In July 2022, the Michigan Supreme Court released its opinion in Meyers v Rieck, ___ Mich ___(2022). The Court overruled previous case law and held that in a malpractice case, a Defendant’s internal protocols may be admissible at trial, but also held that the trial court was to be cautious in so admitting them. It remains to be seen how much Plaintiffs and Defendants will actually be permitted to utilize protocols in the future, but it will create the opportunity for a number of pretrial motions.Case SummaryMeyers concerned the admissibility of whether a standing order in a nursing home could be utilized as evidence of ordinary negligence or malpractice. That order indicated that a doctor needed to be notified if a patient had vomited more than once in a 24 hour period.Plaintiff had filed a Motion to Amend the Complaint, alleging that the order was evidence of both ordinary negligence and malpractice. Defendant filed a motion to dismiss the ordinary negligence claim and to preclude the standing order to be utilized as evidence. The trial court permitted the amendment and denied Defendant’s Motion to dismiss the ordinary negligence claim.
In an interlocutory appeal, the Court of Appeals reversed the trial court and held the case arose in medical malpractice only and dismissed the ordinary negligence claim. The Court of Appeals also held the standing order could not be utilized as evidence of malpractice, following previous Michigan appellate precedent.
The Supreme Court, in lieu of granting appeal, issued an opinion. It partially affirmed the Court of Appeals in holding that claims of violating this standard order would still be a malpractice claim, and not ordinary negligence.
The Court then went on to discuss the standing order. The Court confirmed previous case law that an institution’s breach of its own internal rules is not negligence per se, and similarly that the institution following its internal rules was not evidence of conforming with the standard of practice per se. The Court confirmed that expert testimony was still required to explain the standard of care.
The Court then held that in some instances internal rules might be admissible to support claims of malpractice, differentiating Jilek II, Jilek v Stockson(Jilek I), 289 Mich App 291;796NW2d(2010), rev’d on other grounds by 490 Mich 961(2011)(Jilek II). The trial court is now to consider whether the internal rule meets general evidence standards such as MRE 402 and 403, and that the jury is to be instructed as to the internal rule’s proper use in determining the standard of practice. The Court noted that courts must be “cautious in admitting this evidence.” The Court noted earlier jurisprudence was in place so that institutions were not discouraged from instituting internal rules that were higher than the standard of care, such that they might be used against them. The Court also noted previous case law that a Defendant should not automatically be permitted to present its internal rules as evidence of following the standard of practice.
Ultimately, the Court specifically did not decide the question of whether this standing order should be permitted as evidence at trial, only that it could be permitted in the pleadings.
At this point it is unclear how often, if at all, internal rules will be permitted at trial. The Supreme Court’s language suggests trial courts should be cautious in admitting them, but the guidance to the trial courts was minimal. Given that internal standards are now potentially admissible, Defendants will plainly be aware of Plaintiff’s attempts to use such standards. Defendants however should also consider if they can use such standards to supplement the evidence of complying with the standard of practice, now that the Supreme Court is potentially permitting their use at trial.
This article was published in the MDTC Michigan Defense Quarterly, Vol. 39, Issue No. 2 on February 27, 2023.