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STATE OF MICHIGAN
COURT OF APPEALS


MARK ANTHONY MAHER and DEBRA LYNN MAHER, Plaintiffs-Appellants, v SHULMAN & KAUFMAN, INC., and DAN GITRE, Defendants-Appellees, and JOHN DOE, D.D.S., Defendant.

UNPUBLISHED July 16, 1999

No. 204327 Wayne Circuit Court LC No. 96-618175 NO

Before: Murphy, P.J., and Gage and Zahra, JJ. PER CURIAM. Plaintiffs appeal as of right from an order granting defendants' motion for summary disposition. Plaintiffs allege that plaintiff Mark Maher was injured after swallowing a dental partial plate made for him by defendant Dan Gitre. Plaintiffs filed a three-count complaint entitled "Dental Malpractice/Negligence; Products Liability; Loss of Consortium." Plaintiffs concede that the claims against John Doe, D.D.S., were properly dismissed. We reverse and remand. Plaintiff Mark Maher performed general clerical duties for defendant Shulman & Kaufman, Inc. Shulman & Kaufman is in the business of manufacturing plates, partials, dentures, and other orthodontic implants for dentists for use on dental patients. Defendant Dan Gitre also worked for Shulman & Kaufman. Gitre is a nationally certified dental technician. Sometime during his employment with Shulman & Kaufman, Maher assumed the additional responsibility of delivering products to dentists. In compensation for these additional services, defendant Gitre made a dental prosthesis for Maher to fill a gap in his teeth. This was allegedly done after working hours. Sometime thereafter, while eating pizza

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at his in-laws' home, the dental prosthesis became loose and Maher swallowed it. Maher was taken to the emergency room where the prosthesis was surgically removed from his stomach. Maher now claims to suffer from constant stomach problems as well as anxiety and depression. Plaintiffs first argue that the trial court erred in determining that plaintiffs were required to comply with the statutory notice and affidavit requirements for malpractice actions. MCL 600.2912d; MSA 27A.2912(4), provides, in relevant part, as follows: (1) Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health p rofessional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under section 2169. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff's attorney concerning the allegations contained in the notice and shall contain a statement of each of the following: (a) The applicable standard of practice or care. (b) The health professional's opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice. (c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care. (d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice. [emphasis supplied.] MCL 600.2912b; MSA 27A.2912(2) provides, in relevant part, as follows: (1) Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced. [Emphasis supplied.] A plain reading of these statutes reveals that plaintiffs must comply with the notice and affidavit requirements only if they have asserted a claim of medical malpractice against "a health professional or a health facility." In this case, the trial court dismissed Count I of plaintiffs' compliant, wherein plaintiffs alleged a claim of dental malpractice/negligence, because plaintiffs failed to comply with the notice and affidavit requirements set forth in MCL 600.2912d; MSA 27A.2912(4) and MCL 600.2912b; MSA 27A.2912(2). The trial court, however, did so because the count sounded in medical malpractice; -2

however, the trial court did not determine whether defendant Gitre is a "health professional" or whether defendant Shulman & Kaufman is a "health facility." Accordingly, we remand this case to the trial court to determine whether defendant Gitre is a "health professional" and whether defendant Shulman & Kaufman is a "health facility" as contemplated by MCL 600.2912d; MSA 27A.2912(4) and MCL 600.2912b; MSA 27A.2912(2). If on remand the trial court should decide these questions in favor of defendants, then summary disposition on the medical malpractice count should be granted in favor of defendants since plaintiffs failed to comply with the notice requirement, However, if on remand, the trial court should decide these questions in plaintiffs' favor, the trial court should permit plaintiffs to proceed against defendants under a theory of ordinary negligence since no medical malpractice claim would exist. Plaintiffs next argue that the trial court erred in determining that plaintiffs' remaining products liability claim, and associated consortium claim, were barred by the exclusive-remedy provision of the Worker's Disability Compensation Act (WDCA), MCL 418.101 et seq.; MSA 17.237(101) et seq. We agree. Shulman & Kaufman brought its motion for summary disposition pursuant to MCR 2.116(C)(7), (8) and (10); however, because the parties and the court went beyond the pleadings to decide this issue, we will address the issue under MCR 2.116(C)(10). When determining whether a trial court properly granted summary disposition pursuant to MCR 2.116(C)(10), we review the record de novo to determine whether the prevailing parties were entitled to the judgment as a matter of law. Westfield Cos v Grand Valley Health Plan, 224 Mich App 385, 387-388; 568 NW2d 854 (1997). We first address whether this issue was within the exclusive jurisdiction of the worker's compensation bureau. Whether a court had subject-matter jurisdiction is a question of law that we review de novo. W A Foote Memorial Hosp v Dep't of Public Health, 210 Mich App 516, 522; 534 NW2d 206 (1995). In Zarka v Burger King, 206 Mich App 409, 411; 522 NW2d 650 (1994), this Court stated the following: Defendants are correct that as a general rule the question whether an injury arose out of and in the course of employment is a question to be resolved in the first instance by the bureau. Buschbacher v Great Lakes Steel Corp, 114 Mich App 833, 837; 319 NW2d 691 (1982). However, there is an exception "where it is obvious that the cause of action is not based on the employer/employee relationship." Id. at 838; see also Genson v Bofors-Lakeway, Inc, 122 Mich App 470, 477; 332 NW2d 507 (1983). The question whether plaintiff's injury arose out of and in the course of his employment may be a question of law or one primarily of fact, or a mixed question of law and fact. Koschay v Barnett Pontiac, Inc, 386 Mich 223, 225; 191 NW2d 334 (1971). Thus, where the facts are undisputed, the question is one of law for the court to decide. [Emphasis supplied.]

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We conclude that because it is obvious that the cause of action in this case is not based on the employer/employee relationship, we need not defer to the jurisdiction of the worker's compensation bureau. MCL 418.131(1); MSA 17.237(131)(1), in pertinent part, that "[t]he right to the recovery of benefits as provided in [the WDCA] shall be the employee's exclusive remedy against the employer for a personal injury or occupational disease," while MCL 418.301(1); MSA 17.237(301)(1), provides, in relevant part, that "[a]n employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to [the WDCA] at the time of the injury, shall be paid compensation as provided in [the WDCA]." An employee is entitled to compensation where the nexus between the employment and the injury is sufficient to conclude that the injury was a circumstance of the employment. Collier v J A Fredman, Inc, 183 Mich App 156, 161; 454 NW2d 183 (1990). Further, `It is sufficient to say that an injury is received "in the course of" the employment when it comes while the workman is doing the duty which he is employed to perform. It "arises out of" the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed, and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origins in a risk connected with the employment, and to have flowed from that source as a rational consequence.' [Appleford v Kimmel, 297 Mich 8, 12-13, 296 NW 861 (1941), quoting McNicol's Case, 215 Mass 497, 102 NE 697 (1913); see also Pearce v Michigan Home & Training School, 231 Mich 536, 537 538, 204 NW 699 (1925).] Although the principles discussed by our Supreme Court in Appleford, supra, have been applied to a wide variety of cases, we have found none that would support the trial court's conclusion that Maher's injury arose out of and in the course of his employment. See, generally, 4 Larson, Workmen's Compensation Law,

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