Ordinary negligence claim against Beaumont is dismissed; malpractice claim is reinstated.

The family of Irene Wilczynski sued William Beaumont Hospital and several employees, claiming that an unlicensed radiology technician erred by administering an improper CT scan contrast dye.  Ms. Wilczynski suffered renal failure after receiving the dye.  Plaintiff filed a lawsuit alleging ordinary negligence, or, in the alternative, medical malpractice in administering the dye.  The trial court dismissed both claims.

On appeal, the higher court agreed that an ordinary negligence case could not be pursued under Michigan law, but reinstated the medical malpractice claim.  It held that even though the radiology tech was engaged in an unlicensed profession, actions against her must be brought under the medical malpractice rules because she was employed by a licensed health care facility.  Since the ordering physician's CT scan request did not indicate whether dye was to be injected, the tech was relying upon  her own "professional" judgment in administering dye, making a claim against her a malpractice claim.  Despite her lack of qualifications.

The Court of Appeals reinstated the malpractice claim, however, after finding that the trial judge's striking of Plaintiff's expert's testimony was an abuse of discretion (it "fell outside the range of principled outcomes").  Although the Defendants had asked for a date to take the radiation tech's testimony, the Plaintiff refused to produce the expert until the Defendant produced the Defendant's employee for deposition.  The Defendants never sought or obtained an order compelling production, and therefore the remedy of striking the witnesses' testimony was not available to the Defendant.