Jones v. Correctional Medical Services, Inc. (845 F. Supp. 2d 824, 2012)

OPINION AND ORDER GRANTING DEFENDANTS CORRECTIONAL MEDICAL SERVICES, INC. AND CRAIG HUTCHINSON, M.D.’S MOTION TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT

AND

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT BADAWIABDELLATIF’S MOTION TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT

PAUL L. MALONEY, Chief Judge.

In October 2007, Raymond E. Jones died of viral meningoencephalitis while under the control of the Michigan Department of Corrections. Plaintiff, personal representative of Mr. Jones’s estate, brings claims against various defendants for their alleged role in Mr. Jones’s death, under 42 U.S.C. § 1983 and a tort theory of gross negligence and intentional infliction of emotional distress. (First Am. Compl., ECF No. 44) Before the court today are two Motions to Dismiss and/or for Summary Judgment: one filed by Defendants Correctional Medical Services, Inc. and Craig Hutchinson, M.D. (ECF No. 94), and one filed by Defendant Badawi Abdellatif, M.D. (ECF No. 139).

For the reasons discussed herein, the court will grant the motion of Defendants Correctional Medical Services, Inc. and Craig Hutchinson and will grant in part and deny in part the motion of Defendant Badawi Abdellatif.

I. Background

On September 26, 2007, Raymond E. Jones died of viral meningoencephalitis. Mr. Jones, a prisoner at the Ernest Brooks Facility, under the control of the Michigan Department of Corrections (“MDOC”), had first begun complaining of a strange dizziness 28 days earlier, on August 29, 2007. This suit concerns the treatment and care that Mr. Jones received during those four weeks, alleging that defendants’ actions make them hable under 42 U.S.C. § 1983, the Michigan Wrongful Death Act, and the tort doctrines of gross negligence and intentional infliction of emotional distress.

No one corporation or governmental department is entirely responsible for providing health care to Michigan prisoners. Instead, several different entities provide services at various points in the process. The MDOC itself employs Registered Nurses (“RNs”) who provide direct care for prisoners, but it has contracted out part of its health-care duties to Defendant Correctional Medical Services (“CMS”). CMS employs doctors, either as employees or as independent contractors, to care for prisoners directly. Both CMS and the MDOC also rely on outside hospitals to provide care, presumably that which they are unable -or ill-suited to provide. This case is at least partly about the precise responsibilities and actions of each of these entities, and the roles that each played in Mr. Jones’s medical care, or lack thereof, and his ultimate demise.

Raymond Jones first complained of dizziness on August 29, 2007. He told prison staff that he was getting dizzy when he closed or rubbed his eyes, turned his head, or stood up. (Medical Record, ECF No. 154, Ex. 1 at 1-2.) He was evaluated by MDOC-employed registered nurses over the next several days, but his problems continued. Mr. Jones’s symptoms soon worsened, and he began reporting ear pain, eye sensitivity, nausea, and an inability to walk. (Id. at 3-11.)

Mr. Jones continued to bring his complaints to the prison medical staff over the next 13 days, while his symptoms continued to trouble him. He informed nurses that, among other things, he couldn’t see out of one eye because of the dizziness, he had been throwing up for at least two days, and he had a pain in his right ear that he rated a five out of ten. (Id. at 12.) On September 8, he was taken to Health Services in a wheelchair, showing a high temperature and high blood pressure. (Id. at 13-14.)

During this time, other inmates began to get concerned about Mr. Jones’s health. One man, Troy Reinstra, contacted his mother about Mr. Jones’s health problems and asked her if she would get in contact with Doug Tjapkes, a prisoner advocate with Humanity for Prisoners, about getting Mr. Jones some medical'care. (See Reinstra Dep., ECF. No. 154, App’x, at 12-17; Reinstra Aff., ECF No. 154, Ex. 10.) Mr. Jones’s bunkmate, Jesse Hawkins, and Kenneth Mazurek, another inmate at the facility, also signed affidavits testifying to Mr. Jones’s deteriorating condition. (See Hawkins Aff., Mazurek Aff., ECF No. 154, Ex. 10.)

Despite these symptoms, Mr. Jones was not seen by a doctor until September 11, almost two weeks after he first complained of dizziness. Dr. Abdellatif, who was employed by CMS, examined Mr. Jones and assessed him as having “[u]nexplained headachesf,] double vision[,] and dizziness with loss of balance,” as well as high blood pressure. (Medical Record, ECF No. 154, at 19.) Dr. Abdellatif noted the need to rule out “brain pathology,” and he ordered Mr. Jones sent to the emergency room for further evaluation. (Id.) Dr. Abdellatif testified at deposition that he did not call the hospital to advise them regarding Mr. Jones’s status or symptoms, (Abdellatif Dep., ECF No. 154, App’x, at 67-68.) Nor do the records show that Mr. Jones’s medical records were sent with him to the emergency room. (See Buchanan Dep., ECF No. 154, App’x, at 57.)

Mr. Jones’s symptoms remained when he returned from the hospital later that day. (Medical Record, ECF No. 154, Ex. 1 at 22.) When Dr. Abdellatif saw him again the next day, Mr. Jones again showed high blood pressure, as well as a 5-pound weight loss in the last 24 hours. (Id.) Mr. Jones told Dr. Abdellatif that he had a CT scan at the hospital and that the results were normal, but Dr. Abdellatif did not contact the hospital to obtain the actual test results. (Id. at 25; Abdellatif Dep., ECF No. 154, App’x, at 78-79.) After this examination, Dr. Abdellatif ordered Mr. Jones returned to the emergency room. (Medical Record, ECF No. 154, Ex. 1, at 24-25.) While Dr. Abdellatif testifies that he talked to the emergency room this time about Mr. Jones’s situation, there is a discrepancy between the prison’s medical records, which state that he did talk to the emergency room, and the version of the records provided to the emergency room, which does not contain any such notation. (Compare id. at 25-26; with Hospital Record, ECF No. 154, Ex. 8.) Further, the emergency room doctor does not recall any conversation with Dr. Abdellatif, or indeed, any other prison physician, about admitting a prisoner to the hospital. (Evans Dep., ECF No. 154, App’x, at 47-54.) Nor do the hospital records include any information regarding such a call, as would be required by hospital policy. (See id. at 48.)

Again, Mr. Jones was sent to the emergency room, and again, he was returned that day. (Medical Record, ECF No. 154, Ex. 1, at 26-28.) Dr. Abdellatif did not see Mr. Jones when he returned. Instead, an MDOC nurse examined Mr. Jones, who stated that he was “scared.” (Id. at 31.) Mr. Jones told the nurse that the right side of his face was numb and that he felt like he was floating. His right eye was “asymmetrical and wandering,” and Mr. Jones was unable to swallow his own saliva. (Id.) The nurse consulted with another prison’s hospital and was ordered to send him to the emergency room for a third time. (Id.)

This time, Mr. Jones went to the ER of a different hospital. He again returned to the prison shortly thereafter. Dr. Abdellatif evaluated Mr. Jones the next day, September 18. Mr. Jones was still exhibiting symptoms, and his blood pressure was now up to 173/119. He was “unsteady on [his] feet” and claimed that he couldn’t swallow and “need[ed] water bad.” (Id. at 37.) Dr. Abdellatif prescribed some medicines and ordered that Mr. Jones be given a bottom bunk and a liquid diet. (Id. at 34-35.)

The next day, September 14, Dr. Abdellatif contacted the hospital and arranged for Mr. Jones to be admitted. (Id. at 40-41.) At the hospital, Mr. Jones was diagnosed with meningoencephalitis, an inflammation of the brain and meninges, the membranes covering the central nervous system. He remained at the hospital until September 26, when he died.

Plaintiff Yvette Jones (“Plaintiff’) filed the present suit as personal representative of Mr. Jones’s estate, naming as defendants Correctional Medical Services (“CMS”), which has contracted to provide health care to MDOC prisoners; Craig Hutchinson, regional medical director of CMS; Badawi Abdellatif, M.D., a doctor who provided Mr. Jones with medical care under contract with CMS; and a number of MDOC employees who are not parties to these motions. Based on Defendants’ respective roles in Mr. Jones’s death, Plaintiff claims damages under 42 U.S.C. § 1983, the Michigan Wrongful Death Act, and the tort doctrines of gross negligence and intentional infliction of emotional distress.

In these two Motions, Defendants CMS and Hutchinson (ECF No. 94), and Defendant Abdellatif (ECF No. 139), ask the court to dismiss Plaintiffs claims against them. Each Motion is fashioned as a Motion to Dismiss and/or a Motion for Summary Judgment, and Defendants argue both Rule 12(b)(6) and Rule 56 in their briefing. After a hearing regarding both motions, held on October 31, 2011, Plaintiff and Defendant Abdellatif filed supplemental briefing, per this court’s request, on whether certain aspects of Michigan’s medical-malpractice statute apply to Plaintiffs tort claims.

II. Analysis

As an initial matter, the court can dispose of Plaintiffs “gross negligence” and “intentional infliction of emotional distress” claims (Count III) against Defendants CMS and Hutchinson. These two defendants argue that Plaintiffs allegations fail to state a claim on which relief can be granted. (ECF No. 94, 11-16.) Plaintiff does not contest these claims, and indeed she agrees to dismissal of both tort claims against these two defendants; “Counsel stipulates to partial summary judgment on plaintiffs claims for gross negligence against CMS and Dr. Hutchinson, including any claims for intentional infliction of emotional distress.” (PL’s Resp., ECF No. 104, at 10.)

A. Legal Framework

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir.2008). The burden is on the moving party to show that no genuine issue of material fact exists, but that burden may be discharged by pointing out the absence of evidence to support the nonmoving party’s case. Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir.2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The facts, and the inferences drawn from them, must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Once the moving party has carried its burden, the nonmoving party must set forth specific facts in the record showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. The question is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252,106 S.Ct. 2505.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). When considering whether to grant a 12(b)(6) motion, a court primarily considers the allegations in the complaint itself, but the court may also take into account exhibits attached to the complaint, matters of public record, and certain other items. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir.2001). The defendant bears the burden of establishing that the plaintiff has failed to state a claim upon which relief may be granted. Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007).

B. Plaintiffs Section 1983 Claim Against CMS

Plaintiff claims that defendants, including CMS, violated the Eighth Amendment’s prohibition of cruel and unusual punishment. Treatment of a prisoner violates the Eighth Amendment when it constitutes “deliberate indifference to [the] prisoner’s serious illness or injury.” Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

Count II of Plaintiffs First Amended Complaint alleges Section 1983 “supervisory liability” against CMS. Defendant CMS argues that the doctrines of vicarious liability and respondeat superior do not apply in Section 1983 actions. Instead, Section 1983 liability against a private corporation such as CMS requires that the plaintiff show that its injury resulted from a policy, practice, or procedure of that corporation. According to CMS, not only has Plaintiff failed to uncover any facts that demonstrate such a policy, practice, or procedure, but in fact it cannot do so, because CMS provided its medical services under MDOC policies, not its own. CMS asserts that Plaintiff knows this, as her attorney acknowledged before Magistrate Judge Scoville:

Well, to be perfectly straightforward with your Honor, my original understanding, although incorrect ultimately, was that CMS was responsible as the medical service provider for the MDOC for the policies and practices of the Michigan Department of Corrections. That’s not true. That’s incorrect, and the policies and practices lie directly with the MDOC itself.

(Def.’s Br., ECF No. 94, Ex. B, at 6.) Thus, according to Defendant, the evidence shows no genuine dispute regarding any fact that would allow the claim against it to go forward.

Defendant is correct that CMS cannot be held liable under Section 1983 on a supervisory liability theory. Because CMS was providing medical services to inmates under contract with MDOC, it may properly be sued under Section 1983. See Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir.1993). But the Supreme Court disallowed Section 1983 respondeat superior liability in Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (“[A] municipality cannot be held liable under § 1983 on a respondeat superior theory”). Instead, a government body — or a nongovernmental entity such as CMS, in this case — can be found liable under Section 1983 where a constitutional wrong arises from execution of that entity’s policies or customs. Id. at 694, 98 S.Ct. 2018. A “custom” here need not be formally approved or officially adopted by the entity, however. As the Monell Court noted: “Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Id. at 691, 98 S.Ct. 2018 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598,.26 L.Ed.2d 142 (1970)) (quotation marks omitted).

For her claim to succeed, Plaintiff must therefore: (1) identify a policy or custom; (2) connect the policy or custom to CMS; and (3) show that executing that policy amounted to deliberate indifference to Mr. Jones’s illness. See Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993) (holding that “to satisfy the Monell requirements a plaintiff must identify the policy, connect the policy to the city itself and show that the particular, injury was incurred because of the execution of that policy” (internal quotation marks omitted)).

Though Plaintiff has pleaded that Defendants, including CMS, maintained a number of “customs and/or policies and practices” (First Am. Compl., ECF No. 44, at 15-16), the court finds that Defendant’s showing meets its initial burden by pointing out the absence of evidence connecting any policy or custom to CMS in particular. To avoid summary judgment, then, Plaintiff must draw -this court’s attention to specific facts in the record showing that there is a genuine issue here.

Plaintiff asserts that she has in fact “set forth genuine issues of fact regarding the customs and practices of defendant CMS.” (Pl.’s Resp., ECF No. 104, at 10.) Plaintiffs factual support, however, consists largely of a page-long block quote from the report of her expert, Dr. Jerry Walden, and several citations to Mr. Jones’s medical record. {See id. at 12-13.)

In the cited portion of his report, Dr. Walden allegedly “identifies multiple systemic failures of CMS, (sic) and its medical director Craig Hutchinson, MD” regarding their treatment of Mr. Jones. (Id. at 12.) These quotes, however, provide no support for Plaintiffs claim that CMS policies or customs were involved in Mr. Jones’s treatment. For instance, Dr. Walden states that “Dr. Hutchinson and Dr. Pram-stellar shared the responsibility to have a reporting system from the ER that was timely” and that “Drs. Hutchinson and Pramstellar along with Mr. Straub shared responsibility for the failure to enact an oncall (sic) program to back up the nurses when the doctor or PA was absent from LRF.” (Walden Rep., ECF No. 104, Ex. 2, at 13.) But he cites to no facts on the record that would support these bare assertions. Similarly, Dr. Walden fails to support his claim that “the administration of ... CMS ignored” the American Friends Service Committee’s attempt to intervene. (Id. at 15.) Dr. Walden argues that “delayed reporting” was “the standard” and that “the healthcare bureaucracy” caused delays that harmed Mr. Jones (id. at 13), but he makes no assertion — let alone an assertion backed up with citations to record evidence — that CMS, rather than MDOC, is responsible for that bureaucracy or standard. Other of Dr. Walden’s claims make only case-specific criticisms, with no apparent connection to a policy or custom. (See, e.g., id. at 15 (“[Mr. Jones’s severe symptoms] were apparent to even a lay person and should have caused Jones to have received early physician evaluation and led to earlier hospital care when he was likely to survive.”).) Yet other claims relate explicitly to MDOC and not CMS. (See, e.g., id. (“The Risk Management officer and the Chief Medical Officer [both MDOC employees] gave Jones no help at all!”).)

The rest of Dr. Walden’s report fares no better on this discrete issue. The report makes no reference to CMS policies or customs, though Dr. Walden does state that he had reviewed “Michigan Department of Correction policies” (id. at 1), and the report refers to these MDOC policies in several places. (See id. at 2, 8, 9.) The bulk of Dr. Walden’s report is a discussion of Mr. Jones’s individual case, with no reference to CMS’s or its doctors’ standard procedures.

Mr. Jones’s medical record similarly makes no reference to any CMS policies. (See ECF No. 94, Ex. A.) Nor does it suggest any CMS custom that may have contributed to Mr. Jones’s death. In fact, nothing in the medical record links CMS itself to any particular actions taken during Mr. Jones’s treatment. Nor is there any evidence of a relevant CMS custom. To constitute a custom for purposes of Section 1983, a pattern of action must “ ‘be so permanent and well settled as to constitute a custom or usage with the force of law.’ ” Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 403 (6th Cir.2010) (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018). Plaintiff identifies no evidence of a settled course of action by CMS or its doctors that could constitute a “custom” for Section 1983 purposes.

Plaintiffs briefing does not address its counsel’s in-court admission that the relevant “policies and practices lie directly with the MDOC itself,” rather than with CMS. At the motion hearing, Plaintiffs counsel backtracked, alleging that CMS formerly left its doctors “out of the loop” once their shifts ended. But the record supports counsel’s first statement much better than this one. Plaintiff simply identifies no evidence — and this court found none on its independent review of the record-regarding this practice or any other CMS policy or practice relevant to Mr. Jones’s treatment.

This court thus finds that there is no genuine dispute of material fact that would preserve Plaintiffs Section 1988 claim against CMS. CMS is entitled to summary judgment on this claim.

C. Plaintiffs Section 1983 Claim Against Hutchinson

The parties’ arguments regarding the Section 1983 claim against Dr. Hutchinson are similar to the arguments regarding CMS itself. Defendants argue that there is no evidentiary basis for a Section 1983 claim against Dr. Hutchinson, as he “did not participate in the creation of any CMS policies and he was not personally involved in the treatment of Mp. Jones.” (Def.’s Br., ECF No. 94, at 8.) Plaintiff again relies on citations to the medical record and Dr. Walden’s expert report. (Pl.’s Resp., ECF No. 104, at 11-14.)

Individual liability under Section 1983 typically requires that the defendant have personal involvement in the constitutional deprivation. As with governmental entities, the doctrine .of respondeat superior does not apply to individuals. See Hays v. Jefferson Cnty., 668 F.2d 869, 872 (6th Cir.1982) (“[Liability of supervisory personnel must be based on more than merely the right to control employees.”). “[A] failure of a supervisory official to supervise, control, or train the offending individual officers is not actionable absent a showing that the official either encouraged the specific incident of misconduct or in some other way. directly participated in it.” At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in 'the unconstitutional conduct of the offending officers. Id. at 874.

Plaintiffs filings are somewhat unclear about the basis or bases of her claim against Dr. Hutchinson. Her argument lumps him in with CMS and the “policy or custom” claims, while the First. Amended Complaint also appears to include a claim based on his individual action. {See First Am. Compl., ECF No. 44, at, 11 (Count I).) Regardless of whether Plaintiff is advancing one or both of these arguments, however, this court finds that Plaintiff has failed to show a genuine dispute of material fact. As discussed above, the evidence on record does not suggest that CMS or Dr. Hutchinson had a hand in formulating any policies relevant to Mr. Jones’s treatment, and Dr. Walden’s report contains nothing more than bare assertions regarding Dr. Hutchinson’s “responsibility” for various aspects of health care procedure. Neither does the evidence suggest that Dr. Hutchinson had any role in Mr. Jones’s treatment. In short, Plaintiff points to no evidence linking Dr. Hutchinson to the events at issue here, and this court’s independent review has uncovered no such evidence. Defendant Hutchinson’s motion should therefore be granted.

D. Plaintiffs Section 1983 Claim Against Abdellatif

In a separate motion, Defendant Abdellatif requests summary judgment dismissal of Plaintiffs Section 1983 claim against him. (ECF No. 139.)

1. Preliminary Issue: Plaintiff’s Expert Witness Testimony

Defendant’s briefing challenges in passing the qualifications of Plaintiffs expert witnesses. (Def.’s Br., ECF No. 139, at 16.) As the court noted at oral argument, this suggestion of an argument is not enough to allow this court to make a decision regarding any expert testimony at this time. See Kingsley Assocs., Inc. v. Del-Met, Inc., 918 F.2d 1277, 1286 (6th Cir.1990) (“While a proposed expert witness’ qualification to testify ‘in the form of an opinion or otherwise,’ is unquestionably a preliminary factual determination for the trial court, it is a determination which must be made upon the evidence of the witness’s qualifications, or lack thereof, and not upon the trial court’s personal views.” (citations omitted)). Defendant has since moved to disqualify one of Plaintiffs expert witnesses, Dr. Jerry Walden, M.D. (ECF No. 176.) The parties are briefing this issue, and the court will hold a Daubert hearing to determine whether Dr. Walden satisfies the requirements of Fed.R.Evid. 702.

2. The Legal Standard of “Deliberate Indifference”

Treatment of a prisoner violates the Eighth Amendment when it constitutes “deliberate indifference to [the] prisoner’s serious illness or injury.” Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). This analysis has two components. The first is objective, looking to whether the medical issue is sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The parties do not dispute the existence of a sufficiently serious medical issue here.

The second component is subjective, requiring that the actor have a “sufficiently culpable state of mind.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). That is, the actor must “have subjectively perceived a risk of harm and then disregarded it.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir.2001). This component itself has two elements: knowledge and indifference. The “knowledge” element does not allow for constructive knowledge. It requires more than a misdiagnosis or a claim that defendant reasonably should have known about a risk. Id. As the Supreme Court has stated, “an official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838, 114 S.Ct. 1970 (emphasis added). At the same time, the actor need not know of the risk to a 100% certainty. An inference of risk, if actually made and then disregarded, can constitute deliberate indifference. Id. at 837, 114 S.Ct. 1970. Similarly, a prison official may “not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist.” Id. at 843 n. 8,114 S.Ct. 1970.

As for the action or inaction required for the “indifference” element, the Supreme Court has stated that deliberate indifference to a risk is equivalent to “recklessly disregarding” that risk or “failing to take reasonable measures to abate it.” Id. at 836, 847, 114 S.Ct. 1970. The Sixth Circuit has noted that in cases involving prison medical care, “less flagrant conduct may constitute deliberate indifference” than in cases against other types of government official. Terrance v. North- ville Reg’l Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir.2002). More particularly, the defendant must do more than simply provide some treatment. “ ‘[A] prisoner is not required to show that he was literally ignored by the staff to prove an Eighth Amendment violation, only that his serious medical needs were consciously disregarded.” LeMarbe v. Wisneski, 266 F.3d 429, 439 (6th Cir.2001) (quoting Sherrod v. Lingle, 223 F.3d 605, 611-12 (7th Cir.2000)). Care that is “grossly inadequate” can also constitute deliberate indifference. Terrance, 286 F.3d at 843.

3. Subjective Perception of a Risk of Harm

Defendant argues that “the evidence does not indicate that Dr. Abdellatif was aware that Mr. Jones had viral encephalitis.” (Def.’s Br., ECF No. 139, at 14.) But this mistakes the relevant standard here. The law does not require Plaintiff to show that Abdellatif had diagnosed Mr. Jones’s exact disease in order to prove that he acted with deliberate indifference to the risk. Though, as Defendant notes, the Supreme Court in Farmer v. Brennan stated that an official cannot be condemned for his “failure to alleviate a significant risk that he should have perceived but did not,” 511 U.S. at 838, 114 S.Ct. 1970, the Court was discussing failure to perceive a risk at all, not failure to perceive the specific harm that ended up befalling the plaintiff. Indeed, the Farmer Court rejected this very line of reasoning: “Nor may a prison official escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault.” Id. at 843, 114 S.Ct. 1970. Similarly, “[t]he question under the Eighth Amendment is whether prison officials ... exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future health,’ and it does not matter whether the risk comes from a single source or multiple sources.” Id. (quoting Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). None of the other cases cited by Defendant hold otherwise, and any broad language quoted from their opinions goes only to the same point as Farmer: that a defendant cannot be held liable for failure to perceive any risk at all. See Perez v. Oakland Cnty., 466 F.3d 416, 424 (6th Cir.2006) (holding that plaintiff must “show that Rice was aware of a serious medical need (his mental illness as manifested in suicide risk)” only, rather than awareness of specific diagnosis of mental illness); Horn v. Madison Cnty. Fiscal Court, 22 F.3d 653, 660 (6th Cir.1994) (upholding dismissal of claim where “none of the named defendants had actual or constructive knowledge of [plaintiffs] suicidal propensity”); Gibson v. Foltz, 963 F.2d 851, 854 (6th Cir.1992) (“There was no evidence that the defendants knew that Gibson was in danger.”); McGhee v. Foltz, 852 F.2d 876, 881 (6th Cir.1988) (finding claim insufficient where defendant “had no notice or knowledge of any danger to the plaintiff’).

Thus, the question here is whether Dr. Abdellatif was aware of, or had inferred that there was, a substantial risk to Mr. Jones’s health, not that he had identified the correct source of that risk out of the range of possible diagnoses. Defendant does not seriously dispute this point. A serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir.2008) (citing Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 897 (6th Cir.2004)). Dr. Abdellatif saw enough of a risk to send Mr. Jones to the hospital on three separate occasions. Among other indications of his acknowledgment of the risk to Mr. Jones, his notes indicate that on the first examination he suspected Mr. Jones of a “brain pathology” (Medical Record, EOF No. 154, Ex. 1, at 19), and before the second emergency room visit, he stated, “I feel it is not safe to keep [Mr. Jones] in prison.” (Id. at 25.) The facts here are sufficient to support a finding that he was in fact aware of Mr. Jones’s serious medical need.

J. Disregard

More on-point is Defendant’s argument that Dr. Abdellatif was not indifferent to Mr. Jones’s plight: “Dr. Abdellatif provided [Mr. Jones] with reasonable medical care for [the] symptoms [he] presented with, and he reasonably deferred to the consulting medical specialists at the hospitals to properly diagnose and treat Mr. Jones.” (Def.’s Br., ECF No. 139, at 14.) These referrals, on their own, will not protect Dr. Abdellatif. See LeMarbe v. Wisneski, 266 F.3d at 439 (“Similarly, the fact that Dr. Wisneski eventually referred LeMarbe to a specialist does not automatically immunize Dr. Wisneski from liability for LeMarbe’s intervening injuries. For, as many federal courts have recognized, a deliberately indifferent delay in giving or obtaining treatment may also amount to a violation under the Eighth Amendment.”). The real question here is, as Defendant puts it, the reasonableness of Dr. Abdellatifs actions — whether he “consciously disregarded” Mr. Jones’s needs, id., or provided Mr. Jones with “grossly inadequate” care, Terrance, 286 F.3d at 843. See also Farmer, 511 U.S. at 844^5, 114 S.Ct. 1970 (“[P]rison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.”).

Plaintiff alleges that Dr. Abdellatifs care was “cursory ... at best” and constituted deliberate indifference. Specifically, Plaintiff focuses on the following aspects of Mr. Jones’s care: (1) Dr. Abdellatifs decision to send Mr. Jones to the hospital on September 11 without any accompanying medical information indicating his history or Dr. Abdellatifs suspicions and reasons for sending him; (2) Dr. Abdellatifs failure to see Mr. Jones after he returned from the emergency room on September 11; (3) Dr. Abdellatifs failure to review the emergency room’s test results on September 12; (4) Dr. Abdellatifs decision to send Mr. Jones back to the emergency room on September 12, again without any accompanying medical information; and (5) Dr. Abdellatifs failure to have Mr. Jones admitted to the hospital for two days after he was returned from the emergency room for a third time. Dr. Abdellatifs care, Plaintiff argues, was grossly inadequate, and his failures caused “unreasonable delay” in providing Mr. Jones with critical care.

Defendant counters that Plaintiffs case amounts to nothing more than a claim of negligence or medical malpractice. Mr. Jones was given medication for his symptoms as he presented them. He was sent to the hospital four times — three by Dr. Abdellatif himself, each promptly after he saw Mr. Jones — and examined each time he returned. No one who saw Mr. Jones was able to properly diagnose him until he was finally admitted — on Dr. Abdellatifs insistence — to the hospital on September 14. According to Defendant, Plaintiffs complaints show simply a difference of opinion regarding the proper treatment of a patient presenting Mr. Jones’s symptoms, rather than a case of deliberate disregard of a patient’s needs.

Defendant is correct that Plaintiff needs to establish more than a simple medical malpractice claim. See Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir.2001) (“The requirement that the official have subjectively perceived a risk of harm and then disregarded it is meant to prevent the constitutionalization of medical malpractice claims.”). In disputes “over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments.” Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976). But at the same time, “[a] government doctor has a duty to do more than simply provide some treatment to a prisoner who has serious medical needs.” LeMarbe, 266 F.3d at 439. The distinction between deliberate indifference or reckless disregard and a mere dispute over the adequacy of treatment is a fine one, and discussion of this circuit’s opinions will help delineate the difference.

In Comstock v. McCrary, the Sixth Circuit allowed a Section 1983 claim to go forward against a prison psychologist. 273 F.3d at 704. Comstock involved a prisoner who had committed suicide after being removed from “close observational status, or ‘suicide watch.’ ” Id. at 698-99. The court found that the prison psychologist’s decision to take the prisoner off of close observational status had been based on a “faeial[ly] inadequate]” 30-minute conversation, as the psychologist had not reviewed the patient’s medical records, talked to the patient’s other psychologists, reviewed the prison guards’ records, or taken any of several additional steps that would have improved his evaluation of the patient. See id. at 706-08. The psychologist’s “failure to perform one, or even some,” of these steps took the case from mere negligence into reckless indifference. Id. at 709. Similarly, the court in LeMarbe v. Wisneski, 266 F.3d 429, 432 (6th Cir.2001), allowed a claim to go forward where a patient’s treating surgeon found five liters of bile in the patient’s abdomen, but sewed him up after he and another doctor were unable to find the source of the leak. Id. at 433. Though the surgeon examined the patient several times afterward, the court found that he had “clearly acted with a conscious disregard” for the patient’s health. Id. at 439.

The case of McCarthy v. Place, 313 Fed.Appx. 810, 816 (6th Cir.2008), provides a closer example of facts that will and will not support a finding of deliberate indifference. In that case, Mr. McCarthy needed two teeth pulled and at least one cavity filled. Id. at 811. His dentist scheduled the two teeth to be pulled individually and in separate operations, with the fillings to take place afterward. Id. In the end, it took seven months to complete the work. In the meantime, the dentist gave McCarthy ibuprofen for his tooth pain. The Sixth Circuit held that the dentist’s decision to schedule the treatments sequentially was not deliberate indifference, but the decision to give McCarthy only ibuprofen in the meantime did present a triable issue of fact. Id. at 815-16. The dentist had stated that he scheduled the treatments sequentially because the teeth were on different sides of the mouth, and otherwise McCarthy would not be able to chew after the operation. Id. The court found that this reasoning “demonstrates that [the dentist] did not recklessly disregard the substantial pain that McCarthy was in when he chose this course of action.” Id. at 816. On the other hand, the doctor’s decision to give McCarthy ibuprofen was not similarly supported by a considered weighing of the options. The court found that the doctor could have temporarily filled McCarthy’s tooth while the other operations were pending. Without any evidence that the dentist had considered and reasonably rejected this option, the court found that this choice could show deliberate indifference to McCarthy’s significant tooth pain. Id.

On the other side of the issue, the court in Jones v. Muskegon County, 625 F.3d 935, 938 (6th Cir.2010), affirmed the district court’s dismissal of a claim against a detainee’s doctor. The detainee had been complaining about abdominal pain for months when his nurses asked the doctor to examine him. Though the patient had lost over 40 pounds, the doctor diagnosed him with constipation and gave him a laxative. Id. at 939. The detainee was examined repeatedly over the next several days before he was taken to the hospital, where exploratory surgery uncovered a cancerous tumor. The patient died shortly thereafter. Id. Though the doctor’s initial treatment “seem[ed] inappropriate” to the court, it noted that the patient did have several symptoms that were consistent with that diagnosis. Id. at 945. Mere negligence in diagnosis is not actionable indifference, the court noted, and the doctor did schedule various follow-up exams and transferred the patient to the hospital “when it was apparent that his condition was worsening.” Id. In light of these facts, the court found that the doctor’s conduct did not constitute deliberate indifference. Id. Another instructive case is Williams v. Mehra, 186 F.3d 685 (6th Cir.1999). The psychiatrist — defendants in Williams chose to use a “pill line” to medicate a suicidal patient, in an attempt to prevent him from overdosing. Id. at 688-89. Though the patient did indeed end up overdosing on a stockpile of pills, the Court found that the doctors’ decision did not constitute deliberate indifference. The doctors did in fact recognize the risk to the patient and made a deliberate decision to use a pill line to try to stop him from hoarding pills. Id. at 692. “There is nothing to suggest that the doctors were failing to treat [the patient] or doing less than their training indicated was necessary.” Id.

Both the Comstock and LeMarbe panels expressly distinguished their cases from Williams. Whereas Williams involved a choice of “one medically reasonable form of treatment over another,” the Comstock psychologist’s cursory evaluation was a simple failure to “respond reasonably to the substantial risk of harm.” Comstock, 273 F.3d at 710. Similarly, LeMarbe involved evidence that the doctor knew that a continuing bile leak could be dangerous, whereas Williams involved no evidence that the doctors knew that pill lines were less effective at preventing hoarding than using liquid medication. LeMarbe, 266 F.3d at 439-40. That is, “LeMarbe has raised more than just a simple question of whether Dr. Wisneski made the right medical judgment in treating him.” Id. at 439.

Comparing these cases demonstrates a common principle used to distinguish deliberate indifference from a matter of medical judgment that does not rise to a constitutional violation. Where the defendant made a reasoned choice between two alternative treatments, considering the risk to the patient in doing so, the courts typically refuse to second-guess the doctor’s judgment, even when the decision was in fact wrong. See Williams, 186 F.3d at 692; Durham v. Nu’Man, 97 F.3d 862, 868-69 (6th Cir.1996) (rejecting claim against doctor for failing to order X-ray for several days when patient’s arm, though actually broken, was not swollen); Bright v. Martin, 37 Fed.Appx. 136, 138 (6th Cir.2002) (rejecting claim where patient “received medical treatment for many years while incarcerated and has now concluded that he has a liver condition which Dr. Messany did not treat properly”); Love v. Taft, 30 Fed.Appx. 336, 337-338 (6th Cir.2002) (similar); Powell v. Messary, 11 Fed.Appx. 389, 390 (6th Cir.2001) (rejecting claim that medical treatment provided was ineffective); see also Comstock, 273 F.3d at 710 (distinguishing case from Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and Williams, where defendant “chose one medically reasonable form of treatment over another”).

On the other hand, where the defendant failed to consider more effective alternatives or where the alleged shortcoming involved violations of protocol or failures of process — that is, when there was no “medical judgment” to speak of — the courts give less deference to the medical treatment provider. See, e.g., Phillips v. Roane Cnty., 534 F.3d 531, 536, 544 (6th Cir.2008) (allowing claim to proceed against doctor who knew of patient’s prior collapse, violated protocol in not taking her to the hospital, and failed to follow up for test he had ordered, and whose medical records were unacceptable and examination was cursory); Gibson v. Moskowitz, 523 F.3d 657, 662-63 (6th Cir.2008) (upholding jury’s finding of deliberate indifference where psychiatrist faked to remove prisoner from 90-100-degree room, despite concerns of dehydration and nurse’s repeated requests for him to examine prisoner for dehydration); Perez v. Oakland Cnty., 466 F.3d 416, 424-25 (6th Cir.2006) (allowing claim to go forward where caseworker moved patient to single-cell housing without requesting medical judgment from doctor regarding suicide risk).

Plaintiffs claims in this case allege failures of process: Dr. Abdellatif s failure to review the emergency room’s test results; his repeatedly sending Mr. Jones to the hospital without medical records or even a note indicating a reason; and his failure to see Mr. Jones promptly either time he was returned from the emergency room. These claims are more akin to the “cursory evaluation” cases than to the substantive medical decisions of Jones and Williams. As in Comstock, Phillips, and Perez, this case involves a medical provider who allegedly failed to take a variety of administrative acts that would have significantly improved Mr. Jones’s medical care. Defendant claims no reasonable difference of opinion regarding whether doctors should read their patients’ test results or whether they should send medical records or notes along with their patient to the hospital. This is not a debate over the proper course of treatment for Mr. Jones. It is a question of whether Dr. Abdellatif s failure to perform these actions constituted deliberate indifference to Mr. Jones’s admittedly serious condition — whether Dr. Abdellatif was effectively “failing to treat” Mr. Jones or “doing less than [his] training indicated was necessary.” Williams, 186 F.3d at 692. Though, as Defendant notes, Dr. Abdellatif did send Mr. Jones to the hospital repeatedly, this does not settle the question. Plaintiff provides both factual evidence and expert testimony regarding whether the treatment Mr. Jones received met applicable standards of care. (See, e.g., Walden Expert Rep., ECF No. 154, Ex. 11.) Taking this evidence in the light most favorable to Plaintiff, as we must in deciding this motion, the court finds that Plaintiff has shown a triable question of fact regarding whether Dr. Abdellatifs treatment of Mr. Jones displayed deliberate indifference.

5. Proximate Cause

Defendant also argues that Plaintiffs claim should be dismissed because she has failed to show that Dr. Abdellatif s inaction or delay proximately caused Mr. Jones’s death, as the Sixth Circuit required in Napier v. Madison County, 238 F.3d 739, 742 (6th Cir.2001). (Def.’s Br., ECF No. 139, at 16.)

But Napier did not, as Defendant suggests, establish a free-floating requirement of proximate cause in “deliberate indifference” cases. The Sixth Circuit has clearly cabined the Napier rule’s scope to “cases involving only ‘minor maladies or non-obvious complaints of a serious need for medical care.’ ” Estate of Carter v. City of Detroit, 408 F.3d 305, 312 (6th Cir.2005) (citing Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 898 (6th Cir.2004)). Where a patient’s serious medical issue is sufficiently obvious, the Plaintiff is not required to submit evidence that delay actually harmed him. Blackmore, 390 F.3d at 899-900 (“In a word, Napier does not apply to medical care claims where facts show an obvious need for medical care that laymen would readily discern as requiring prompt medical attention by competent health care providers.”).

As noted above, three other prisoners at the Ernest Brooks Facility have signed affidavits regarding Mr. Jones’s apparent physical condition during his illness. These affidavits attest that during this time, Mr. Jones “appeared] to be losing control of his muscles, losing weight rapidly, [and] becoming very weak and unable to walk” (Reinstra Aff., ECF No. 154, Ex. 10); that he “looked malnourished, pale, weak and sickly” and “appeared to be getting worse” (Mazurek Aff., id.)-, and that he “stopped going to meals and appeared to stop eating his meals” (Hawkins Aff., id.), among other things. All three inmates stated their willingness to testify that Mr. Jones appeared to them to be seriously ill and in need of urgent medical assistance. (Id.) Combined with the nurses’ and doctor’s notes on Mr. Jones’s medical record discussed above, these affidavits, read in the light most favorable to Plaintiff, sufficiently raise a question of fact as to whether Mr. Jones’s medical need was sufficiently obvious to make Napier evidence unnecessary. The court therefore declines to grant summary judgment on this ground.

E. Plaintiffs Gross Negligence Claim Against Dr. Abdellatif

Defendant Abdellatif also asks the court to dismiss Plaintiffs gross negligence claim (Count III) against him, based on Plaintiffs failure to state a claim upon which relief can be granted. See Fed. R.Civ.P. 12(b)(6). Michigan law sets out various requirements for “malpractice” claims, including written, pre-suit notice, Mich. Comp. L. § 600.2912b, and the filing of an “affidavit of merit” signed by a medical health professional along with the complaint, Mich. Comp. L. § 600.2912d. Defendant argues that Plaintiffs claim, though purporting to be based on “gross negligence,” is in actuality a medical malpractice claim and so is subject to Michigan’s procedural requirements. (Def.’s Br., ECF No. 139, at 17-19.) Because Plaintiff failed to follow these requirements, Defendant argues, her claim must be denied under Rule 12(b)(6).

1. The Character of Plaintiff’s Claim

The first issue here is whether Plaintiffs claim must in fact be treated as a medical malpractice claim. To begin with, the Complaint itself is not entirely consistent about whether Count III is based on state or federal law. The claim is titled “GROSS NEGLIGENCE” and states that defendants’ “acts and/or omissions and/or conduct ... constitute gross negligence ... under the laws of the State of Michigan.” (First Am. Compl., ECF No. 44, at 18.) But it also states that “defendants have deprived plaintiffs decedent of the rights secured by the Eighth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983.” (Id. at 19.) At least one other district court has found that a similarly ambiguous claim pleaded a federal, constitutional claim rather than a state-law claim. See Hagopian v. Smith, No. 05-74025, 2008 WL 3539256, at *4-5 (E.D.Mich. Aug. 12, 2008) (construing claim titled “Gross Negligence, Wilful and Wanton Misconduct of All Individual Defendants” but alleging “violation of Plaintiffs Constitutional Rights”). This claim is less ambiguous than that in Hagopicm, however, both due to its repeated statements about Michigan law and because Plaintiffs complaint alleges its constitutional claims separately, under Counts I and II. (See First Am. Compl., ECF No. 44, at 11-18.) This court finds little difficulty in construing this claim as one brought under Michigan law and not federal constitutional grounds.

Michigan’s Government Tort Liability Act sets out “gross negligence” as one exception to the general immunity it grants government employees. See Mich. Comp. L. § 691.1407(2) (granting immunity so long as employee’s “conduct does not amount to gross negligence that is the proximate cause of the injury or damage”). But as noted above, Michigan statutes also set out various requirements for medical malpractice claims, left largely undefined in the statute. See Mich. Comp. L. §§ 600.2912-2912h. The parties dispute whether this claim is merely a one of gross negligence, not subject to Michigan’s additional malpractice requirements, or whether it is actually a malpractice claim, to which the additional requirements may apply (as discussed further below).

Under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court deciding a state-law claim applies the state law for all substantive issues and federal law for procedural issues. See also Felder v. Casey, 487 U.S. 131, 151, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988) (applying Erie doctrine to pendent claims). Whether a claim sounds under state-law gross negligence or state-law medical malpractice is clearly a substantive issue to which Michigan law applies. This court will thus look to the Michigan courts’ treatment of similar claims for guidance on this issue.

The courts of the State have held that the substance of a claim, rather than the words in which the claim is couched, determines whether it is in fact a malpractice claim subject to the statutory requirements. See Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 594 N.W.2d 455, 464 (1999) (“[A] complaint cannot avoid the application of the procedural requirements of a malpractice action by couching its cause of action in terms of ordinary negligence.” (modification in original; quotation marks omitted)); Adam v. Sisters of Bon Secours Nursing Care Ctr., No. 2007-001381, 2011 WL 3903146, *4 (Mich.Ct. App. Sept. 6, 2011) (holding gross negligence claim subject to malpractice requirements).

The Michigan Supreme Court has enumerated two key aspects that distinguish malpractice claims. First, the alleged negligence must have “occurred within the course of a professional relationship.” Dorris, 594 N.W.2d at 465. That is, 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 that required that professional, that facility, or the agents or employees of that facility, to render professional health care services to the plaintiff.” Bryant v. Oakpointe Villa Nursing Ctr., 471 Mich. 411, 684 N.W.2d 864, 871 (2004). Plaintiffs First Amended Complaint meets this factor by alleging that Dr. Abdellatif was “under contract with defendant Correctional Medical Services to provide medical care to the inmates of the Michigan Department of Corrections.” (First Am. Compl., ECF No. 44, at 5.)

Second, the facts of a malpractice claim “raise questions involving medical judgment,” rather than “issues that are within the common knowledge and experience of the jury.” Dorris, 594 N.W.2d at 465. Where “the reasonableness of the action can be evaluated by a jury only after having been presented the standards of care pertaining to the medical issue before the jury explained by experts, a medical malpractice claim is involved.” Bryant, 684 N.W.2d at 872. The courts have held that issues so attenuated from direct medical treatment as supervision and staffing decisions fall under the malpractice rules. See, e.g., id. (staffing and patient monitoring); Bronson v. Sisters of Mercy Health Corp., 175 Mich.App. 647, 438 N.W.2d 276 (Mich.Ct.App.1989) (supervision and staffing decisions); Waatti v. Marquette Gen’l Hosp., 122 Mich.App. 44, 329 N.W.2d 526 (Mich.Ct.App.1982) (whether seizure patient needs constant medical supervision); Starr v. Providence Hosp., 109 Mich.App. 762, 312 N.W.2d 152 (Mich.Ct.App.1981) (adequate supervision). On the other hand, a claim that defendant did nothing in response to a known risk is a matter of negligence, not malpractice. See Bryant, 684 N.W.2d at 875 (“No expert testimony is necessary to determine whether defendant’s employees should have taken some sort of corrective action”; “[t]he fact-finder can rely on common knowledge and experience.”).

The issues involved in this claim are not so completely settled that a jury can decide them based only on common knowledge and experience. Plaintiff alleges that Defendants breached their duty by, among other things, “failing to present decedent to [a] qualified medical provider,” “failing to obtain vital signs, administer prescribed medications, [and] notify qualified medical professionals of decedent’s deteriorating condition in order to obtain timely diagnosis and treatment of an otherwise treatable disease.” (First Am. Compl., ECF No. 44, at 18.) These issues — whether defendants negligently failed to present Mr. Jones to a “qualified medical provider” or to diagnose him in a timely manner, let alone whether his disease was in fact “otherwise treatable” — are clearly issues that will require expert testimony for all but the most medically proficient factfinder to decide. See also Sibley v. Borgess Med. Ctr., 2008 WL 2744618, *3 (Mich.Ct.App.2008) (finding that whether nursing staff conveyed appropriate information to treating physicians involved question of medical judgment).

Michigan law does not, as Plaintiff implies, allow a claim sounding in medical malpractice to be brought as a “gross negligence” claim under the Government Tort Liability Act, Mich. Comp. L. § 691.1407. Instead, the courts appear to recognize that both governmental immunity and the malpractice requirements can apply to a plaintiffs claim. See Costa v. Cmty. Emergency Med. Servs., Inc., 475 Mich. 403, 716 N.W.2d 236 (2006). In Costa, the plaintiff brought a medical malpractice claim against defendants, who alleged immunity under the Government Tort Liability Act, Mich. Comp. L. § 691.1407. Plaintiff countered that because he alleged gross negligence, immunity did not attach; further, because defendants failed to file affidavits of meritorious defense, as required by Mich. Comp. L. § 600.2912e, he was entitled to summary judgment on his claims. Id. at 238. The Michigan Supreme Court thus had to determine whether — and if so, how — the malpractice requirements and government-immunity statute applied to this malpractice-with-gross-negligence claim. The court found for defendants, holding that the affidavit of merit requirement applied, but only if the court first determined that defendants were not entitled to immunity. Id. at 242. That is, if the facts surrounding plaintiffs malpractice claim did in fact establish gross negligence, then defendants would not be immune and would then be subject to the malpractice requirements under Michigan law.

The Costa court did not ignore the malpractice requirements simply because plaintiff alleged gross negligence; nor did it ignore the immunity statute because the claim was one for malpractice. Instead, the court applied both laws, acknowledging that though gross negligence is not required for an ordinary malpractice claim, an allegation (and proof) of gross negligence is necessary to overcome a defendant’s government-immunity defense. Id. at 240-41. Gross negligence here was not a separate claim, but an “additional showing” that plaintiff must make in order to impose liability on such a defendant. Id. at 241.

Though Costa is not precisely on point with this ease — for instance, the parties there appear to have conceded that plaintiffs claim was one for malpractice— the decision is clearly applicable here. The court’s analysis shows that malpractice claims and “gross negligence” claims exempt from government immunity are not distinct sets of legal actions, as Jones argues. Rather, when a plaintiff brings an action sounding in medical malpractice — as Dorns and the other cases discussed above make clear is the case with Jones’s claim — both sets of laws apply, with potential conflicts worked out based on standard principles of statutory interpretation. Jones’s allegation of gross negligence is thus relevant to any potential claims of governmental immunity under Mich. Comp. L. § 691.1407, but it does not take this claim out of the realm of malpractice.

As such, this court finds that Plaintiffs “gross negligence” claim sounds under medical malpractice for purposes of Michigan law. This finding does not complete the analysis, however.

2. The Applicability of Michigan’s Statutory Requirements

As discussed above, Michigan’s malpractice requirements only apply to this federal action if they are substantive in nature under Erie and its progeny. If instead the requirements are procedural in nature, they do not apply in federal court.

The parties spend significant time discussing various Michigan decisions that have called these rules “substantive” or “procedural.” But the federal courts are not bound to follow a state’s own characterization of its rule in determining whether to apply a state law under Erie, particularly when those characterizations arise in a non -Erie context. See Byrd v. Blue Ridge Rural Elec. Co-op., Inc., 356 U.S. 525, 550, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) (“It is therefore immaterial whether (state-created rights) are characterized either as ‘substantive’ or ‘procedural’ in State court opinions in any use of those terms unrelated to the specific issue before us.”) (quoting Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945)); see also Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., — U.S. —, 130 S.Ct. 1431, 1469, 176 L.Ed.2d 311 (2010) (Ginsburg, J., dissenting) (listing examples where federal courts refused to follow state characterizations of rules). We must, therefore, evaluate Michigan’s requirements independently, according to the applicable legal standard.

a. The applicable legal standard

Under Erie, the federal courts are to apply state substantive law and federal procedural law. As it became clear that in many cases, no clean distinction could be made between substance and procedure, the Supreme Court refined this test, eventually settling on a functional inquiry based on the “twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer, 380 U.S. 460, 468, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). The key question, according to Hanna, is “whether application of the [state] rule would make so important a