Mason v. Rosen

Per Curiam. Plaintiff appeals orders for summary judgment granted in favor of each defendant dismissing her complaint for wrongful death on the basis of governmental immunity. Plaintiff’s appeal of the summary judgment granted in defendant Shur’s favor is of right. (Docket No. 56239.) Her appeal of the summary judgment granted in defendant Rosen’s favor is by leave granted. (Docket No. 57077.) The two cases were ordered consolidated by this Court on July 14, 1981. When governmental immunity forms the basis of a motion for summary judgment, the burden is upon the plaintiff to plead facts in avoidance of immunity. Furness v Public Service Comm, 100 Mich App 365; 299 NW2d 35 (1980); Armstrong v Boss Twp, 82 Mich App 77; 266 NW2d 674 (1978). As this Court stated in Butler v Wayne County Sheriff’s Dep’t, 75 Mich App 202, 203-204; 255 NW2d 7 (1977): "When governmental immunity is at issue, the test used to decide a motion for summary judgment under GCR 1963, 117.2(1) is whether the specific tortious activity alleged against the state or its agencies, when examined in a light most favorable to the plaintiff, falls within the 'exercise or discharge of a governmental function’. MCL 691.1407; MSA 3.996(107); Galli v Kirkeby, 398 Mich 527, 536-537; 248 NW2d 149, 152 (1976) (opinion of Williams, J.).” The facts as alleged by plaintiff are that in September, 1978, the decedent was admitted to the Detroit Psychiatric Institute following a suicide attempt. Defendant Rosen, a psychiatrist, and de *207 fendant Shur, alleged to be an individual with training and expertise in the care and treatment of mental patients, were charged with the decedent’s care and treatment. Plaintiff further alleged that despite showing signs of suicidal tendencies, the decedent was permitted by defendants to leave the institute and visit her family on several occasions. On March 17, 1979, the decedent shot and killed herself while on such leave. Plaintiff alleged in her complaint that defendants breached various and sundry duties owed to the deceased by: (a) granting plaintiff’s decedent temporary releases from Detroit Psychiatric Institute for home visits, (b) failing to properly supervise the activities of plantifFs decedent while on said temporary releases, (c) failing to instruct the relatives of plaintiff’s decedent in the care and treatment of said decedent while on said temporary releases, (d) failing to prescribe and/or administer proper types and/or quantities of medication for plaintiff’s decedent from September 17, 1978, until March 17, 1979, (e) failing to properly supervise or monitor the care and treatment given to plaintiff’s decedent by other persons under the authority of and/ or associated with defendants in the care and treatment of said decedent at Detroit Psychiatric Institute, (f) failing to possess the proper training and/or certification to render the care and treatment given to plaintiff’s decedent, (g) failing to adequately diagnose the illness of plaintiff’s decedent, and (h) failing to establish and maintain an adequate plan of care and treatment for plaintiff’s decedent. Plaintiff further alleged such breach of duty to have been a proximate cause of her decedent’s death. In Perry v Kalamazoo State Hospital, 404 Mich *208 205; 273 NW2d 421 (1978), a majority of the Court determined that operation of a public mental hospital constitutes a governmental function afforded statutory immunity from tort liability. MCL 691.1407; MSA 3.996(107). Justice Moody, writing the controlling opinion in the case, determined that because of the "pervasive role” which government played in the area of mental health, evidenced by the substantial appropriations in the state’s annual budget and legislative declaration of a public policy that the care, treatment, and rehabilitation of the seriously mentally handicapped should be fostered and supported, the operation of a public mental hospital was a governmental function. Said Justice Moody: "The day-to-day care by an attendant, physician or other employee on the staff of a mental hospital represents a governmental function furthering the public need to segregate, treat and rehabilitate citizens suffering from mental disease who cannot otherwise care for themselves and who often are committed voluntarily or involuntarily through governmental action. "Accordingly, as public mental hospitals perform an essentially unique activity mandated by legislative action, immunity must be extended as a governmental function under the statute. The proper planning and carrying out of this function can effectively be accomplished only by the government. The function is esentially governmental.” Perry, supra, p 214. Relying on Perry, this Court has held that the Center for Forensic Psychiatry was entitled to the same immunity as was afforded a state mental hospital. Fuhrmann v Hattaway, 109 Mich App 429; 311 NW2d 379 (1981). Plaintiff has failed to plead any factual basis for distinguishing the present case from Perry and Fuhrmann, and we conclude that the institute, a public mental health *209 care facility, would be entitled to governmental immunity under the statute. Turning to those allegations which form the basis of liability asserted against the individual defendants, Rosen and Shur, it is evident that plaintiffs claim is founded exclusively upon assertions of negligence or, more particularly as to certain allegations, malpractice. Moreover, these allegations sounding in malpractice are in the nature of "unreasonable lack of skill” or application thereof in the discharge of professional responsibilities, rather than charging "evil practice, or illegal or immoral conduct”. Black’s Law Dictionary (Rev 4th ed), p 1111, "Malpractice”. Plaintiff pleaded no acts of intentional infliction of injury nor any acts that might be construed as being ultra vires or outside the scope of defendants’ employment with the institute. We note that a substantial number of the decisions of this Court continue to determine immunity of the individual governmental employee by application of the discretionary-ministerial dichotomy articulated by Justice Cooley in the leading case of Wall v Trumbull, 16 Mich 228 (1867). See Willis v Nienow, 113 Mich App 30; 317 NW2d 273 (1982); Gaston v Becker, 111 Mich App 692, 701; 314 NW2d 728 (1981) (dissenting opinion of D. E. Holbrook, Jr., J.); Fiser v Ann Arbor, 107 Mich App 367; 309 NW2d 552 (1981); Vargo v Svitchan, 100 Mich App 809; 301 NW2d 1 (1980); O’Toole v Fortino, 97 Mich App 797; 295 NW2d 867 (1980); Cook v Bennett, 94 Mich App 93; 288 NW2d 609 (1979); Siess v Bureau of Pardons & Paroles, 74 Mich App 613; 255 NW2d 2 (1977). However, we perceive an emerging trend among the members of this Court to adopt the analysis of Judge Bashara’s dissenting and concurring opinion in Cook v *210 Bennett, supra, as further explained by Judge Bronson’s majority opinion in Gaston, supra. See Lewis v Beecher School System, 118 Mich App 105; 324 NW2d 779 (1982). The more recent cases construe the consensus in Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979), and Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979), as having held that the proper test to apply to ascertain individual immunity of an employee of a governmental agency, engaged in the exercise or discharge of a governmental function, is merely whether this individual employee was acting within the scope of his employment. If so, the employee cannot be held liable. The principal criticism which might be offered to the consensus test as recognized in Gaston, supra, is that it results in an unexplained expansion of governmental immunity contrary to the established policy of the Michigan Supreme Court to curtail common-law judge-made immunity which the state and its instrumentalities have enjoyed. Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976); Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961). Having determined that plaintiff asserts only negligence, or negligent malpractice, on the part of individual defendants Rosen and Shur, and having further concluded that all of the actions upon which plaintiffs claim is grounded occurred within the scope of employment of each defendant respectively, application of the rationale of Gaston, supra, and of Judge Bashara’s opinion in Cook, surpa, leads to the conclusion that the cloak of governmental immunity extends to the présent defendants. We note, moreover, that even if defendants’ immunity were to be determined by analysis of *211 whether the complained-of acts were discretionary or ministerial, the result reached would not differ. Each instance of alleged breach of duty by defendants relates directly to the care and treatment of decedent as a mentally ill person. "Plainly, the activities of the defendant psychiatrists are anything but ministerial. The decisions required of these persons are perhaps the ultimate in discretion. To determine the state of a person’s psyche is in itself a task requiring great discretion and when this task is conjoined with the even more imposing job of resolving another’s liberty, the consequent decision cannot be said to be 'ministerial’ in any sense of that word.” Fuhrmann v Hattaway, supra, p 436. The decision of the circuit court in the action against each defendant is affirmed. No costs are to be taxed, a public question being involved. Bronson, J., concurs in the result only.