Duncan v. City of Detroit , 78 Mich. App. 632 ( 1977 )

78 Mich. App. 632 (1977) 261 N.W.2d 26

DUNCAN
v.
CITY OF DETROIT

Docket No. 27729.

Michigan Court of Appeals.

Decided September 21, 1977.

Clark, Hardy, Lewis & Fine, P.C. (by Jerome H. Solomon), for plaintiff.

Kitch & Suhrheinrich, P.C. (by Gregory Drutchas), for defendant.

Before: T.M. BURNS, P.J., and BRONSON and C.W. SIMON,^[*] JJ.

PER CURIAM.

Plaintiff sued to recover damages allegedly caused by negligent diagnosis and treatment of a scalp laceration at Detroit General Hospital. Upon defendant's motion, summary judgment was granted for defendant on the basis of governmental immunity. MCLA 691.1407; MSA 3.996(107).

That governmental immunity statute provides:

"Sec. 7. Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed."

"Governmental functions" immune under the statute include those governmental activities which were immune at common law at the time of the enactment of the statute. Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976), White v Detroit, 74 Mich App 545; 254 NW2d 572 (1977).

A long, unbroken line of cases have held that the operation of a community owned hospital is a governmental function. See, e.g., Snow v Freeman, 55 Mich App 84; 222 NW2d 43 (1974), White v Detroit, supra. That is not the end of our inquiry, however, because we must examine the specific complained-of activity and determine whether it is within "the exercise or discharge of a governmental function". See Galli v Kirkeby, 398 Mich 527; 248 NW2d 149 (1976) (WILLIAMS, J.). In the instant case, the complained-of activity is the treatment and diagnosis of plaintiff's injury. This is within "the exercise or discharge of a governmental function", White v Detroit, supra, just as, for example, tunneling was in Thomas, or hiring and firing employees was in Galli.

It is also implicit within the recent Michigan Supreme Court cases that the governmental immunity statute does not violate the equal protection or due process clauses of the United States or Michigan Constitutions. White v Detroit, supra. See Thomas v Department of State Highways, supra.

Summary judgment for defendant is affirmed. Costs to appellee.

T.M. BURNS, P.J. (dissenting).

In her complaint, plaintiff alleged that she fell and suffered a laceration of the scalp. She went to the hospital and was treated. When hospital employees sutured the laceration, they failed to remove gauze or packing material from the wound. Plaintiff returned to the hospital several times between July 17, 1971, and October 12, 1972, complaining of pain in the area of the laceration. Hospital personnel failed to discover the embedded material. Sewing gauze into a wound and subsequently failing to discover that error is not a governmental function. White v Detroit, 74 Mich App 545, 548; 254 NW2d 572 (1977) (T.M. BURNS, J., dissenting).

I would reverse the trial court order granting summary judgment for the defendants.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.