COA 369903 TW V COREWELL Opinion - Per Curiam - Unpublished 6/5/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
JEREMY WHITCHER and KATHRYN
WHITCHER, Individually and as Next Friends of
TW,
Plaintiffs-Appellants,
UNPUBLISHED
June 05, 2026
10:40 AM
v No. 369903
Oakland Circuit Court
COREWELL, also known as COREWELL
HEALTH, also known as COREWELL HEALTH
EAST, also known as BEAUMONT HEALTH
SYSTEMS, also known as, BEAUMONT HEALTH,
also known as WILLIAM BEAUMONT
HOSPITAL, also known as BEAUMONT HEALTH
AND WELLNESS CENTER, also known as
BEAUMONT HEALTH, also known as BHSH
SYSTEM, also known as BHSH HEALTH, and
STRYKER CORPORATION,
LC No. 2022-197315-NO
Defendants-Appellees
JEREMY WHITCHER and KATHRYN
WHITCHER, Individually and as Next Friends of
TW,
Plaintiffs-Appellants,
v No. 374189
Oakland Circuit Court
JOHN FOX, CAROLYN WILSON, MARIE
DOHERTY, DEBBIE GUIDO-ALLEN, CECILIA
SHEIKH, ANGELA BECK, GORDON
MATTHEWS, KENYETTA ROBINSON, NOAH
ELLINGBOE, JAYME TENNER, AMANDA
NASH, BRENDA CHEEK, DEMETRA HYTER,
SUZANNE MIELKE, KRISTI COASTER, GRANT
LC No. 2024-205041-NO

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SMITH, CHANDRA SARGEANT, CINDY RIOS,
JOHN KERNDL, and BRETT WHITBREAD,
Defendants-Appellees,
and
STRYKER CORPORATION and HEALTHTRUST
PURCHASING GROUP,
Defendants.
Before: GADOLA, C.J., and REDFORD and RICK, JJ.
PER CURIAM.
In Docket No. 369903, plaintiffs appeal as of right the trial court’s order granting defendant
Corewell summary disposition under MCR 2.116(C)(7) and (10). In Docket No. 374189, plaintiffs
appeal by leave granted the trial court’s order granting the individual defendants summary
disposition under MCR 2.116(C)(7) and (8). We affirm.
I. FACTS
Plaintiffs, Jeremy and Katheryn Whitcher, are the parents of TW, who in 2018 was
diagnosed with scoliosis, an abnormal curvature of the spine. After conservative treatment failed
to stop the progression of the scoliosis, TW underwent surgery in November 2020 at Corewell,
also known as William Beaumont Hospital. TW was then 14 years old. Dr. Ira Zaltz performed a
posterior spinal fusion to correct the curvature of her spine caused by the scoliosis. During the
surgery, the bur at the end of the drill that Dr. Zaltz was using on TW’s spine “skipped” and
lacerated the ligamentum flavum along with the dura at L3-L4. Ligamentum flavum is a layer of
ligament tissue that joins the vertebrae together. The dura is a layer of tissue that covers the spinal
cord. Another surgeon assisted Dr. Zaltz in repairing the tear, but TW nonetheless suffered serious
injury. Dr. Zaltz later testified that the bur skipped because the drill unexpectedly decelerated
causing the drill to lurch.
In Docket No. 369903, plaintiffs initiated their lawsuit against defendant Corewell alleging
ordinary negligence, specifically, that Corewell breached its duty to properly maintain, repair, and
replace the drill that was used in the surgery, thereby causing TW’s injuries and damages to
plaintiffs. Corewell moved for summary disposition under MCR 2.116(C)(7) and (10) on the basis

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that plaintiffs’ claims sounded in medical malpractice, and plaintiffs had failed to properly plead
a medical malpractice claim. The trial court agreed and dismissed plaintiffs’ complaint.1
Plaintiffs also initiated the lawsuit in Docket No. 374189 against several individuals
connected with Corewell. In their amended complaint, plaintiffs alleged that the individuals
named as defendants were employed by Corewell as directors, officers, managers, or
administrators. Plaintiffs alleged that defendants owed a fiduciary duty to TW which they had
breached by failing to properly fund and staff the department of the hospital tasked with
maintaining the hospital’s surgical equipment and by failing to properly maintain, repair, and
replace the drill that was used in the surgery resulting in TW’s injuries.2 Plaintiffs also alleged
that certain of the individual defendants fraudulently concealed information about the drill and the
incident. Defendants3 moved for summary disposition under MCR 2.116(C)(7) and (8), arguing
that plaintiffs’ action against them was a collateral attack on the trial court’s dismissal of plaintiffs’
suit against Corewell. The trial court agreed and granted the motion for summary disposition, also
concluding that plaintiffs had failed to demonstrate a valid claim of breach of fiduciary duty or
fraud.
Plaintiffs claimed an appeal in Docket No. 369903 and applied for leave to appeal in
Docket No. 374189. This Court granted plaintiffs leave to appeal in Docket No. 374189 and
consolidated the two appeals. TW v Fox, unpublished order of the Court of Appeals, entered
April 9, 2025 (Docket No. 374189).
II. DISCUSSION
A. DOCKET NO. 369903
In Docket No. 369903, plaintiffs contend that the trial court erred by granting Corewell
summary disposition under MCR 2.116(C)(7) and (10), holding that their claim against Corewell
sounded in medical malpractice and not ordinary negligence as alleged in their complaint. We
disagree that the trial court erred.
Whether a plaintiff’s claim is one of ordinary negligence or medical malpractice is a
question of law that we review de novo. Estate of Miller v Angels’ Place, Inc, 334 Mich App 325,
329; 964 NW2d 839 (2020). We also review de novo the trial court’s decision to grant or deny
summary disposition, Jostock v Mayfield Twp, 513 Mich 360, 368; 15 NW3d 552 (2024), as well
as the application of statutes, Green v Pontiac Pub Library, 350 Mich App 478, 486; 32 NW3d
487 (2024).
Whether a claim sounds in ordinary negligence or medical malpractice is a determination
properly made under MCR 2.116(C)(7). Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich
1 Plaintiffs thereafter filed a lawsuit against Corewell alleging medical malpractice.
2 In Docket No. 374189, plaintiffs also alleged claims against Stryker Corporation and Healthtrust
Purchasing Group who are not parties to the appeal in that case.
3 Defendants Kerndl, Rios, and Whitbread concurred in the motion.

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411, 419; 684 NW2d 864 (2004). When considering a motion under MCR 2.116(C)(7), we
consider the affidavits, depositions, admissions, and other documentary evidence submitted, and
accept the contents of the complaint as true unless contradicted by the documentation submitted
by the moving party. Estate of Miller, 334 Mich App at 330. If the facts are not disputed, and if
reasonable minds could not differ regarding the legal effect of the facts, whether summary
disposition is warranted is a question of law for the Court. Id.
“A medical malpractice claim is sometimes difficult to distinguish from an ordinary
negligence claim. But the distinction is often critical.” Trowell v Providence Hosp & Med Ctrs,
Inc, 502 Mich 509, 517-518; 918 NW2d 645 (2018). To establish a claim of negligence, the
plaintiff must demonstrate that (1) the defendant owed a duty of care to the plaintiff, (2) the
defendant breached that duty, (3) the plaintiff suffered damages, and (4) the damages were
proximately caused by the defendant’s breach of duty. Jeffrey-Moise v Williamsburg Towne
Houses Coop, Inc, 336 Mich App 616, 626; 971 NW2d 716 (2021). To establish a claim of medical
malpractice, the plaintiff must demonstrate (1) the standard of care, (2) that the defendant breached
the standard of care, (3) injury, and (4) that the damages were proximately caused by the plaintiff’s
breach. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). The statute of limitations for a
medical malpractice claim generally is two years, Ottgen v Katranji, 511 Mich 223, 231; 999
NW2d 359 (2023), while the statute of limitations for a claim of ordinary negligence is three years,
Stephens v Worden Ins Agency, LLC, 307 Mich App 220, 234; 859 NW2d 723 (2014). In addition,
a plaintiff alleging medical malpractice must comply with specific statutory and procedural
requirements not applicable to a claim of ordinary negligence. See Dorris v Detroit Osteopathic
Hosp Corp, 460 Mich 26, 43; 594 NW2d 455 (1999).
To ascertain the nature of a claim, we seek the gravamen of the claim by reading the
complaint as a whole regardless of the label applied to the claim by the plaintiff. Meyers v Rick,
509 Mich 460, 469; 983 NW2d 747 (2022). When determining whether a claim is one for medical
malpractice, we consider first whether the case is brought against an entity or a person capable of
medical malpractice. Bryant, 471 Mich at 420. “A malpractice action cannot accrue against
someone who, or something that, is incapable of malpractice.” LaFave v Alliance Healthcare
Servs, Inc, 331 Mich App 726, 732; 954 NW2d 566 (2020), quoting Adkins v Annapolis Hosp, 420
Mich 87, 95; 360 NW2d 150 (1984). In LaFave, this Court explained:
The scope of who can be sued for medical malpractice has expanded over
the years. Initially, “[u]nder the common law, only physicians and surgeons were
potentially liable for medical malpractice.” Kuznar v Raksha Corp, 481 Mich 169,
177; 750 NW2d 121 (2008). With MCL 600.5838a, the Legislature expanded the
scope of who may be subject to a medical-malpractice action to include other
professionals and entities. Bryant, 471 Mich at 420, citing Adkins, 420 Mich at 94-
95. Specifically, the Legislature provided for medical-malpractice claims to be
brought against “a person or entity who is or who holds himself or herself out to be
a licensed health care professional, licensed health facility or agency, or an
employee or agent of a licensed health facility or agency.” MCL 600.5838a(1).
[LaFave, 331 Mich App at 732.]

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In this case, the parties do not dispute that Corewell is a licensed health facility under MCL
600.5838a. The trial court therefore properly concluded that Corewell is capable of committing,
and can be held liable for, medical malpractice pursuant to MCL 600.5838a(1).
The next inquiry is whether a plaintiff’s claim sounds in medical malpractice, which
requires the court to determine (1) whether the alleged injury occurred within the course of a
professional relationship, and (2) whether the claim raises a question of medical judgment beyond
that of common knowledge and experience. Bryant, 471 Mich at 422. Our Supreme Court in
Bryant explained:
A medical malpractice claim is distinguished by two defining characteristics. First,
medical malpractice can occur only within the course of a professional
relationship. . . . Second, claims of medical malpractice necessarily raise questions
involving medical judgment. . . . Claims of ordinary negligence, by contrast, raise
issues that are within the common knowledge and experience of the [fact-finder].
Therefore, a court must ask two fundamental questions in determining whether a
claim sounds in ordinary negligence or medical malpractice: (1) whether the claim
pertains to an action that occurred within the course of a professional relationship;
and (2) whether the claim raises questions of medical judgment beyond the realm
of common knowledge and experience. If both these questions are answered in the
affirmative, the action is subject to the procedural and substantive requirements that
govern medical malpractice actions. [Id. at 422 (quotation marks and citations
omitted).]
In determining whether the injury occurred within the course of a professional relationship we
consider that:
A professional relationship sufficient to support a claim of medical malpractice
exists in those cases in which a licensed health care professional, licensed health
care facility, or the agents or employees of a licensed health care facility were
subject to a contractual duty . . . to render professional health care services to the
plaintiff. [Id.]
In this case, TW was admitted to Corewell, a licensed health facility, for a posterior spinal
fusion surgery to correct the curvature of her spine caused by scoliosis. Because her alleged
injuries occurred during the surgery, TW’s injuries occurred within the course of a professional
relationship.
The trial court also properly found that plaintiffs’ claim raised issues of medical judgment.
The parties do not dispute that the drill in question was used by Dr. Zaltz during TW’s spinal
surgery during which TW allegedly was injured. Dr. Zaltz testified that he used a specialized drill
and bur provided by Corewell and made specifically for surgical procedures to perform a
decortication of TW’s spine. He testified that while using the drill, it suddenly and unexpectedly
decelerated, causing the bur to skip off TW’s bone and lacerate her spine. At trial, expert testimony
would be needed to explain the surgery, the use of the drill and bur during surgery, the proper
functioning of the drill, the proper maintenance of the drill, and the plausibility of Dr. Zaltz’s
explanation of the malfunction. Because plaintiffs’ alleged injuries occurred during a professional

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relationship and present questions of medical judgment not within common knowledge and
experience that would require the presentation of expert testimony to the jury, plaintiffs’ claim
against Corewell sounds in medical malpractice. The trial court therefore properly dismissed
plaintiffs’ claim of ordinary negligence against Corewell under MCR 2.116(C)(7).
B. DOCKET NO. 374189
In Docket No. 374189, plaintiffs contend that the trial court erred by granting summary
disposition under MCR 2.116(C)(7) and (8) of plaintiffs’ claims against Corewell’s officers,
directors, and employees named as defendants. We disagree.
Again, we review de novo the trial court’s decision to grant or deny summary disposition.
Jostock, 513 Mich at 368. When considering a motion under MCR 2.116(C)(7), we consider the
affidavits, depositions, admissions, and other documentary evidence submitted, and accept the
contents of the complaint as true unless contradicted by the documentation submitted by the
moving party. Estate of Miller, 334 Mich App at 330. If the facts are not disputed, whether
summary disposition is warranted is a question of law for the Court. Id. A motion for summary
disposition under MCR 2.116(C)(8) tests the legal sufficiency of the claim based on the factual
allegations of the complaint and is warranted when a claim is so unenforceable that no factual
development could justify recovery. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159-
160: 934 NW2d 665 (2019). When reviewing the trial court’s decision granting or denying
summary disposition under MCR 2.116(C)(8), we consider the motion based on the pleadings
alone and accept all factual allegations as true. Id.
In their amended complaint, plaintiffs alleged ordinary negligence described as a breach of
a fiduciary duty; plaintiffs also alleged fraudulent concealment. The trial court granted defendants
summary disposition under MCR 2.116(C)(7) and (8), holding that plaintiffs’ claims were an
impermissible collateral attack on the trial court’s decision in plaintiffs’ suit against Corewell, that
plaintiffs failed to demonstrate that defendants breached a fiduciary duty owed to TW, and that
plaintiffs failed to establish fraud. We conclude that plaintiffs’ claim is not a collateral attack,4
but that the trial court did not err by dismissing plaintiffs’ claims.
When a party uses a second proceeding to attack the court’s decision in a previous
proceeding outside of the appellate process, the second proceeding is a “collateral attack.” Zelasko
v Charter Twp of Bloomfield, 347 Mich App 141, 161; 14 NW3d 441 (2023). Generally, collateral
attacks are impermissible unless the decision attacked was void for lack of subject-matter or
personal jurisdiction. Id. In Docket No. 369903, plaintiffs alleged that Corewell was liable in
ordinary negligence for failing properly to maintain the drill that allegedly malfunctioned during
TW’s surgery. The trial court granted Corewell summary disposition, holding that the claim
sounded in medical malpractice, not ordinary negligence. In Docket No. 374189, plaintiffs once
again alleged ordinary negligence, this time against certain officers, directors, and employees of
Corewell, claiming that as officers, directors, and employees of Corewell, defendants owed TW a
4 Even so, in Docket No. 374189 plaintiffs dedicate a considerable portion of their brief on appeal
to attacking the trial court’s order and opinion in Docket No. 369903.

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fiduciary duty that they breached. This claim differs from plaintiffs’ claim against Corewell;
plaintiffs’ argument in Docket No. 374189 appears to be that even if Corewell cannot be held liable
to TW in ordinary negligence, its officers, directors, and employees can be. We conclude that
Docket No. 374189 does not constitute a collateral attack on the trial court’s decision granting
Corewell summary disposition of plaintiffs’ claims.
However, the trial court correctly determined that summary disposition was warranted. As
discussed, “the Legislature provided for medical-malpractice claims to be brought against ‘a
person or entity who is or who holds himself or herself out to be a licensed health care professional,
licensed health facility or agency, or an employee or agent of a licensed health facility or
agency.’ ” LaFave, 331 Mich App at 732, quoting MCL 600.5838a(1) (emphasis added). Here,
the parties do not dispute that Corewell is a licensed health facility and therefore capable of medical
malpractice and subject to the attendant potential for liability. Plaintiffs’ theory of liability hinges
on defendants’ status as alleged employees and agents of Corewell. Just as plaintiffs’ allegations
of ordinary negligence against Corewell sound in medical malpractice, so too do plaintiffs’
allegations against the individual defendants. The allegations against the individual defendants
essentially mirror the allegations against Corewell in Docket No. 369903, and likewise sound in
medical malpractice rather than ordinary negligence. We conclude that plaintiffs’ claims were
subject to dismissal because they sound in medical malpractice rather than ordinary negligence.
We observe, however, that the trial court did not grant defendants summary disposition on
that basis. Rather, the trial court addressed the merits of plaintiffs’ claims against the individual
defendants. Plaintiffs alleged that defendants owed TW a fiduciary duty to make reasonable
business decisions by properly staffing and funding the department of Corewell responsible for
maintaining the drill and to ensure that all instruments and equipment were properly handled.
Addressing the merits of these allegations, the trial court reasoned:
[T]o the extent that Plaintiffs’ claims could be construed as alleging a breach of a
fiduciary duty, Michigan law does not recognize such a duty to non-shareholders.
Murphy v Inman, 509 Mich 132; 983 NW2d 354 (2022). Further, “[A] fiduciary
relationship arises from the reposing of faith, confidence, and trust and the reliance
of one on the judgment and advice of another.” Teadt v Lutheran Church Missouri
Synod, 237 Mich App 567, 580-581; 603 NW2d 816 (1999). The party with the
duty must act for the benefit of the other with respect to matters within the scope
of the relationship. Id. at 581. “Relief is granted when such position of influence
has been acquired and abused, or when confidence has been reposed and betrayed.”
Id. Plaintiffs’ [amended complaint] fails to allege facts that, even if true, would
demonstrate that TW had a fiduciary relationship with any of the individual
Defendants or that any of the individual Defendants abused or betrayed such a
position of influence or trust.
The trial court similarly rejected plaintiffs’ allegations of fraudulent concealment,
reasoning that fraudulent concealment is not a substantive cause of action and plaintiffs did not
otherwise establish a cause of action for fraud. The trial court held that “to the extent that Plaintiffs
are attempting to assert a fraud claim based on an alleged failure to cooperate in discovery or
alleged perjury, these are allegations of intrinsic fraud. . . Michigan does not recognize an
independent action at law to recover damages for intrinsic fraud.”

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Whether a fiduciary duty exists is a question of law to be decided by the court. Prentis
Family Foundation v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 43; 698 NW2d
900 (2005). To establish a claim of breach of fiduciary duty, the plaintiff must establish (1) the
existence of a fiduciary duty, (2) breach of the duty, and (3) that the breach caused the plaintiff’s
damages. Highfield Beach at Lake Michigan v Sanderson, 331 Mich App 636, 666; 954 NW2d
231 (2020). A fiduciary relationship is one “in which one person is under a duty to act for the
benefit of the other on matters within the scope of the relationship.” Murphy v Inman, 509 Mich
132, 146; 983 NW2d 354 (2022) (quotation marks and citation omitted).
Under Michigan common law, the directors of a corporation owe fiduciary duties to their
shareholders. Id. at 152. “Directors of a corporation are understood to be fiduciaries because they
are required to use their acumen for [the] corporation’s benefit rather than [their] own.” Id. at 146
(quotation marks and citation omitted). “The essence of directors’ fiduciary duties is to produce
to each stockholder the best possible return for his [or her] investment.” Id. at 149 (quotation
marks and citation omitted). Here, plaintiffs have failed to demonstrate that defendants, as officers,
directors, and employees of Corewell, owed a fiduciary duty to act for TW’s benefit rather than
for Corewell’s benefit. We conclude that the trial court correctly determined that in this case,
plaintiffs did not adequately plead or otherwise establish that defendants owed a fiduciary duty to
TW.
We similarly conclude that the trial court correctly determined that plaintiffs failed to
establish a claim of fraud, holding that there are no allegations that, even if true, would support a
claim of fraud. As the trial court explained, fraudulent concealment typically is raised in the
context of a plaintiff’s effort to toll the running of the statute of limitations when a person has
fraudulently concealed the existence of a claim. See Mays v Snyder, 323 Mich App 1, 38; 916
NW2d 227 (2018), citing MCL 600.5855. Here, plaintiffs appear to raise allegations akin to an
asserted discovery violation or an assertion of spoliation of evidence, but do not demonstrate
fraudulent concealment.
Affirmed.
/s/ Michael F. Gadola
/s/ James Robert Redford
/s/ Michelle M. Rick

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