Tryc v Michigan Veterans’ Facility , 451 Mich. 129 ( 1996 )

Mallett, J.

The question presented in this appeal is whether the Michigan Veterans’ Facility meets the hospital exception of the governmental immunity statute, thus preventing the facility from claiming immunity from the negligent acts of its employees. Because the facility meets the four-part definition of “hospital” according to the plain language of the statute, we reverse the decision of the Court of Appeals.

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On November 8, 1989, Richard Tryc was admitted to the Michigan Veterans’ Facility in Grand Rapids, a residential facility designed to provide care for veterans. Tryc was a veteran of the Second World War who suffered from Alzheimer’s disease. At the time of his admission, the facility was under the administration of the Department of Public Health.¹

After his admission to the facility, a long-term care assessment was prepared for Tryc. This assessment indicated that the facility staff could place Tryc in a geriatric chair to keep him in place during meals and when he became “agitated.” On March 10, 1990, Tryc was fed his breakfast in the geriatric chair while wearing a “protective vest,” which was a restraint that wrapped around him and secured him to the chair. After breakfast, at approximately 8:40 A.M., he was left unattended while the workers assigned to care for him were hearing morning reports and taking a coffee break. During this time, Tryc slipped down in the chair and was strangled to death by the vest.²

A tort action was filed by Catherine Tryc, Richard’s wife, individually and as personal representative of his estate, against the facility and the Department of Public Health, seeking recovery on the basis of the alleged negligence of the facility’s employees. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7),³ claiming that they were immune from suit on the basis of governmental immunity. The Court of Claims granted summary disposition for defendants, concluding that the facility was not a “hospital” for purposes of the public hospital exception, MCL 691.1407(4); MSA 3.996(107)(4). It noted that the facility was “not a licensed hospital,” did not have an organized medical staff, was not accredited by the “Joint Committee on Hospital Accreditations,” and did not have a peer-review committee. It stated that “the nature of the facility much more closely [approximates that of a nursing home” even though it was not a nursing home because it was “exempted from the nursing home statute.”

Plaintiff appealed the Court of Claims decision in the Court of Appeals, which affirmed in an unpublished memorandum opinion, issued June 10, 1994 (Docket No. 145189). Plaintiff sought leave to appeal to this Court, which was granted, limited to the issue “whether the Michigan Veterans’ Facility is a ‘hospital’ within the statutory definition found in MCL 691.1407(4)(b); MSA 3.996(107)(4)(b).⁴ We reverse the decision of the Court of Appeals that the facility was not a “hospital” under the public hospital exception.

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Defendants asked the Court of Claims for summary disposition pursuant to MCR 2.116(C)(7),⁵ claiming that they were protected by governmental immunity. In determining whether a plaintiff’s claim is barred by immunity granted by law under MCR 2.116(C)(7), a court must consider all documentary evidence filed or submitted by the parties. Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992). The court accepts well-pleaded allegations as true and construes them in a light most favorable to the nonmoving party. Id. at 162-163. Governmental immunity under MCL 691.1401 et seq.; MSA 3.996(101) et seq. is an affirmative defense and must be stated in a defendant’s responsive pleading, MCR 2.111(F)(3)(a). Id. at 163; McCummings v Hurley Medical Center, 433 Mich 404, 412; 446 NW2d 114 (1989). However, the plaintiff must allege facts justifying application of an exception to governmental immunity in order to survive a motion for summary disposition. Wade, supra at 163.

The State of Michigan provides under MCL 691.1407(1); MSA 3.996(107)(1) that governmental agencies are immune from tort liability when engaged in the exercise or discharge of a governmental function. This statute provides for broad immunity. Wade, supra at 166; Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595; 363 NW2d 641 (1984).

In 1986 PA 175, the Legislature, in response to our ruling in Ross, supra, amended the governmental immunity statute by creating the public hospital exception. Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 245; 393 NW2d 847 (1986). In Ross, supra at 620, we defined the meaning of “governmental function” to be an “activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law.” Under Ross, a public general hospital would be protected from liability whenever its activities were expressly or impliedly mandated by law. See Hyde, supra at 243. This decision impliedly overruled Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), which had held that a public hospital was subject to liability because its operation did not constitute the exercise of a governmental function. See Hyde, supra at 243. Act 175 adopted the principle from Parker that a governmental agency operating a general hospital was subject to tort liability. Stein v Southeastern Michigan Family Planning Project, Inc, 432 Mich 198, 203; 438 NW2d 76 (1989).

The hospital exception of the governmental immunity statute provides that a facility and its agents and employees are not immune under the statute if the facility meets the following four-part definition of “hospital”: (1) it offers inpatient, overnight care and services; (2) for observation, diagnosis and active treatment; (3) of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition; (4) requiring the daily direction or supervision of a physician.⁶

The rules of statutory construction are well established. First and foremost, we must give effect to the Legislature’s intent. Reardon v Mental Health Dep’t, 430 Mich 398, 407; 424 NW2d 248 (1988). If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). Further, we are to give statutory language its ordinary and generally accepted meaning. Id. at 27. However, when a statute specifically defines a given term, that definition alone controls. Detroit v Muzzin & Vincenti, Inc, 74 Mich App 634, 639; 254 NW2d 599 (1977); Butterfield Theatres v Revenue Dep’t, 353 Mich 345; 91 NW2d 269 (1958).

Applying these principles, the definition of “hospital” supplied in the statute, being clear and unambiguous, controls. Judicial construction is not permitted.⁷

The clear language of the statute states that a “hospital” is any facility that offers overnight care and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. Thus, if a facility offers the requisite care to one individual, who does not need to be the individual bringing suit, the facility meets the definition.

The touchstone of the exception is the type of care offered to and required by an individual, not the general character of the facility.⁸ When a long-term care facility offers the type of care required by the statutory definition of “hospital,” it is not immune from suit.

The dissent suggests that to meet the requirement of daily physician direction or supervision, every resident must be seen by a physician each and every day of a stay at the facility.⁹ If this were the intent, the Legislature could have explicitly required daily physician visits or that care be administered directly by a physician daily throughout the patient’s entire stay. Instead, the statute only requires daily physician direction or supervision.¹⁰ Each time a nurse administers medication, it is done under the direction of a physician. A physician’s order directing the daily administration of a medication, or a policy requiring that a given order be renewed daily by a physician, clearly satisfies the criteria.

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The first three elements of a “hospital” under the statute are for the most part undisputed; the facility offers inpatient, overnight care for observation, diagnosis, and treatment of individuals with medical, chronic, or rehabilitative conditions. Defendants dispute whether the facility offers active treatment for conditions requiring the daily direction or supervision of a physician. However, we find that the evidence indicates otherwise.

In this regard, the deposition testimony of Thomas Lindsay, the commandant of the facility, is instructive. Mr. Lindsay would not acknowledge that the facility was a “hospital,” insisting instead that it was a long-term care facility.¹¹ However, when questioned specifically on the four elements of a “hospital” under the statute, he testified that the facility does provide overnight, inpatient care and active daily treatment of chronic and rehabilitative conditions. He further testified that the facility has a full-time staff physician who provides daily direction and supervision for residents’ medical care. Mr. Lindsay’s testimony was as follows:

Q. Well, let’s go through it step by step, how about that?

A. Okay.

Q. First of all, the Veteran’s Facility does offer in-patient care, doesn’t it?

A. In-patient from the standpoint of overnight services for more than one night, yes.

Q. And it also offers its people, its veteran residents, overnight care?

A. That’s by virtue of being a long term care facility.

Q. It offers them long term care and services?

A. Yes.

Q. And among the services that are offered by the Veteran’s Facility are services that include things like observation of their condition from time to time?

A. Yes.

Q. Diagnosis of what their condition is?

A. Yes.

Q. And active treatment of those conditions?

A. Active treatment in terms of that long term care setting, what we are providing is typically maintenance treatment for a long term illness.

Q. But it’s nevertheless active treatment. I’m not talking about active treatment of the entire panoply of medical problems that a general hospital might provide. I mean certainly among the things that you actively treat your veteran residents for are chronic problems, you treat them on an active basis on a daily basis?

A. Right.

Q. And you also treat your veteran residents on an active and daily basis for rehabilitative problems?

A. Not all of the veterans.

Q. Not all of them, but some of them?

A. Some of them, yes.

Q. Well, you do have on-staff physicians?

A. We have on-staff physicians, yes.

Q. And you have at least what, two of them?

A. I have one on-staff physician.

Q. That physician is full-time?

A. Yes.

Q. And provides the residents of the facility with daily direction or supervision?

A. Not all of the residents.

Q. But some of them?

A. Some of the residents on a particular rotation.

In addition to Mr. Lindsay’s testimony, brochures from the facility that emphasize the medical care available to residents also indicate that the hospital exception applies. For example, a pamphlet titled “Member Guide Book” states:

The Joseph W. Mann Building was built in 1988 and provides skilled nursing care for 226 residents. An organized program of medical care is available on an ongoing basis, designed to meet individual needs. This building is staffed with doctors, nurses, and residential care personnel who provide for the medical needs of the members.

The Bemie C. McLeish Building was built in 1975. This 343-bed unit provides both skilled and basic nursing care. Again, doctors, nurses, and residential care personnel provide for the medical needs of the members. Business offices, the kitchen, the main dining facility, doctors’ and dentists’ offices, clinics, x-ray, medical laboratory, occupational and physical therapy, the chapel and chaplain offices are also located in this building. [Emphasis added.]

Also, from a booklet titled “Michigan Veterans’ Facility, A Century of Caring”:

The primary objective of care at the MVF is to restore health and maintain existing functions, enabling veterans the opportunity to enjoy their remaining years to the fullest. [Emphasis added.]

These publications describe active treatment rather than passive or strictly maintenance services. For example, they indicate the availability of physical and occupational therapy. In addition, the listed objectives of care include restoring health, not merely maintaining it. The publications also suggest the availability of daily medical care by staff physicians. The reference to an “organized program of medical care . . . available on an ongoing basis ... to meet individual needs,” suggests that physicians are available to provide daily direction or supervision for the residents’ medical care when such care is needed.

The facility’s written policies and procedures, dated January 18, 1989, for physical restraints, like the safety vest worn by Mr. Tryc, is also highly indicative of daily physician direction or supervision. The procedures state that physical restraints may only be ordered “from the physician and must be renewed every 24 hours.” Thus, under these procedures, the staff physician was required to reevaluate daily the need for such devices and to reorder them daily.¹²

Finally, Mr. Tryc’s medical records also support application of the hospital exception by confirming daily physician direction or supervision in Mr. Tryc’s care. For example, the medical records reveal that the staff physician performed a complete history and physical examination of Mr. Tryc, ordered various laboratory studies and x-rays, reviewed the laboratory studies and x-rays, prepared a long-term care assessment and treatment plan, and ordered numerous medications and devices. Prescription order forms were signed by the staff physician on a regular basis. These included orders for medications and devices that were to be administered to Mr. Tryc daily. In sum, Mr. Tryc’s medical records reflect ongoing and detailed physician direction and supervision in his care which, when viewed with all the other evidence, establish active treatment under the daily direction or supervision by a physician.

IV

The evidence, consisting of: (1) Mr. Lindsay’s deposition testimony, in which he admits that the facility provides services satisfying the four elements enumerated in the statutory definition of “hospital,” (2) facility publications describing active and ongoing medical treatment and services available for residents, (3) the facility’s policy and procedures regarding the use of physical restraints, and (4) Mr. Tryc’s own medical records from the facility, establish that the hospital exception is met. The dissent’s suggestion that to meet the exception, the general character of the facility must be akin to an acute-care hospital is not required by the statute. Nor does the statute require that patients in a facility be seen each day throughout their stay by a physician; it merely dictates that at least some of the patients have conditions requiring active treatment under the daily direction or supervision of a physician. Because at least some of the residents of the Michigan Veterans’ Facility have chronic or rehabilitative conditions requiring active treatment under the daily direction or supervision of a physician, we hold that the facility is a hospital within the meaning of the hospital exception to governmental immunity and remand for trial.

Reversed and remanded.

Levin, Cavanagh, and Boyle, JJ., concurred with Mallett, J.

1 The administration of the facility was transferred to the Department of Military Affairs pursuant to Executive Order No. 1991-6, effective January 17, 1991, as amended by Executive Order No. 1992-1.

2 An investigator hired by the facility to review the events preceding Tryc’s death produced a report that concluded:

I find the evidence indicates Ms. Gould [Tryc’s care worker] placed Mr. Tryc in the Day room while being left in his protective Vest for a prolonged period of time, over 30 minutes without being monitored by Staff, and was placed there not because she knew he could not walk due to his unsteadiness but because it was more convenient to her to be able to locate and finish dressing him after her reports and coffee break. It was “routine” for her to do this rather than allow Mr. Tiye to wander or for her to “test” his unsteadiness. It indicates the Vest was used as a Physical Restraint rather than a Protective Device.

3 Defendants mistakenly state on appeal that they sought summary disposition pursuant to MCR 2.116(C)(10).

4 449 Mich 852 (1995).

5 MCR 2.116(C)(7) provides:

The claim is barred because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

6 The statute provides in pertinent part:

(4) This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility. As used in this subsection:

(b) “Hospital” means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. The term does not include a hospital owned or operated by the department of mental health or a hospital operated by the department of corrections. [MCL 691.1407(4)(b); MSA 3.996(107)(4)Cb).]

7 Thus, the dissent’s inquiry into whether the facility better fits the commonly understood definition of a nursing home, rather than a hospital, or whether it fits the definition of a nursing home as provided in the Public Health Code is inappropriate. Even if the statute were ambiguous, the dissent’s reliance on the Public Health Code is unpersuasive. The dissent examines the mutually exclusive definitions of “hospital” and “nursing home” under the Public Health Code and determines that the facility’s general character is that of a nursing home, not a hospital. However, it does not matter if the facility’s general character is more aldn to a nursing home or long-term care facility. The definition of “hospital” provided in the governmental immunity statute specifically includes facilities that treat chronic or rehabilitative conditions. Nor does it matter that the facility has the equivalent of only two full-time physicians. The definition does not mandate a specific physician-patient ratio. The definition provides that a “facility” is a “hospital” if it offers services for active treatment of an individual with a condition requiring the daily direction or supervision of a physician. Even if the facility does not maintain an appropriate physician-patient ratio, if it offers such treatment to an individual requiring such physician direction and supervision, it is a hospital within the meaning of the definition.

Unlike the Public Health Code, the governmental immunity statute does not define “hospital” as being an entity mutually exclusive of a nursing home. Further, the purpose of providing mutually exclusive definitions for nursing homes and hospitals under the Public Health Code are not relevant to the purpose of defining “hospital” under the governmental immunity statute. The Public Health Code establishes a comprehensive licensing and regulatory scheme that necessarily distinguishes between the two types of entities. In contrast, the purpose of the hospital exception to governmental immunity is to allow suits against government-operated facilities that offer to provide a certain level of care. In enacting the hospital exception, the Legislature has chosen to correct inequitable recoveries between persons injured by identical conduct in public and private facilities. Jamieson v Luce-Mackinac-Alger-Schoolcraft Dist Health Dep’t, 198 Mich App 103, 112; 497 NW2d 551 (1993).

8 It should be noted that in today’s health care world, the lines between acute care hospitals and nursing homes have become increasingly blurred. Patients are often discharged from hospitals when their conditions still require active treatment under the daily direction or supervision of a physician. These patients are frequently transferred from a hospital to a nursing home or long-term care facility for a period to receive this care.

9 If the dissent’s suggestion were taken literally, many hospitals would fail to meet the definition. For example, I would find it surprising if all patients in a rehabilitation hospital are seen by a physician on a daily basis. Also, common experience tells us that patients in general acute care hospitals do not always receive care directly from a physician each and every day of their stay. During more lengthy hospital stays the physician may merely review the chart and may not actually visit the patient daily.

10 The Random House Dictionary of the English Language: Unabridged Edition, provides the following definitions of the terms “direction” and “supervision”:

Direction — Order; command. . . . management; control; guidance; supervision. . . .

Supervision — The act or function of supervising; superintendence.

11 Mr Lindsay’s insistence that active care and daily physician supervision or direction are provided at the facility only in the context of long-term care and only for some of the residents is irrelevant to the statutory inquiry. As previously noted, the statute does not require that the services be provided in an acute care setting or that they be provided to all the residents.

12 The dissent, post at 152-153, points out that a newer policy replaced the daily order requirement, and that at the time of Mr. Tryc’s death, restraints were to be ordered on a monthly basis. This, however, would not be dispositive because daily orders may be the appropriate standard. This facility should no more be permitted to establish its own standards than any other defendant. The question whether physical restraints or safety vests should be ordered daily or monthly is for a jury to decide.