The Michigan Supreme Court heard oral arguments in McLain v City of Lansing Fire Department on October 6, 2016 to decide whether to grant leave to appeal. Tracy McLain sought emergency treatment as a result of a respiratory attack. Emergency personnel inserted a breathing tube due to her low blood oxygen levels and transported her to the hospital. She alleges that the emergency personnel placed the tube in her esophagus rather than her trachea and that they acted with gross negligence where they did not check her blood oxygen levels with a pulse oximeter during the entire transport to the hospital. Upon arrival at the hospital, the emergency department notes indicate that the tube was placed in the esophagus. By that time, Ms. McLain had suffered irreparable brain damage due to her prolonged low blood oxygen levels. The Trial Court dismissed plaintiff’s complaint, holding that she failed to establish a genuine issue of material fact that defendants’ actions rose to the level of gross negligence. The key issues were: (1) whether a hospital note stating that the tube was observed as being in the esophagus is admissible where the intern who dictated the note had no personal knowledge of the tube placement and could not recall the source of the information recorded and (2) even if the note is admissible, whether the note was sufficient to create a question of fact as to gross negligence. The Court of Appeals affirmed the Trial Court in a published opinion. 

Oral argument in the Supreme Court centered mostly on the type of conduct required to establish a claim of gross negligence. Chief Justice Young began the hearing by noting a policy concern of discouraging people from engaging in emergency services under threat of malpractice claims. Plaintiff argued, however, that in this case, the issue was not one of mere negligence, but involved a complete failure of the emergency personnel to care for the patient by failing to check the patient’s blood oxygen levels at all after placement of the tube. Defendant argued that use of a pulse oximeter is not the only way to check a patient’s oxygenation and that the emergency personnel were properly attending to the patient the entire time the patient was being transported, this demonstrating concern for her condition. Very little oral argument was dedicated to the admissibility of the hospital record.  

The Supreme Court denied the Application for Leave to Appeal on October 12, 2016.