Burse v. Wayne County Medical Examiner , 151 Mich. App. 761 ( 1986 )

151 Mich. App. 761 (1986) 391 N.W.2d 479

BURSE
v.
WAYNE COUNTY MEDICAL EXAMINER

Docket No. 79096.

Michigan Court of Appeals.

Decided May 20, 1986.

Veleta Brooks-Burkett, for plaintiff.

John D. O'Hair, Corporation Counsel, and Glen H. Downs, Assistant Corporation Counsel, for defendant.

Before: DANHOF, C.J., and HOOD and SULLIVAN, JJ.

PER CURIAM.

Plaintiff appeals as of right from an order granting summary judgment to defendant, Wayne County Medical Examiner, on the basis of governmental immunity and from the denial of plaintiff's motion to amend her complaint. We affirm.

This case arises out of the death of plaintiff's brother, James Earl Burse, who was killed in an automobile accident and pronounced dead on arrival by Dr. Haresh Mirchandani, Assistant Wayne County Medical Examiner. The cause of death was listed as chest injuries received in an automobile accident. An autopsy was performed later by another Assistant Wayne County Medical Examiner.

Plaintiff, in her complaint for declaratory judgment, alleged that she was outraged that the defendant agency performed an nonconsensual autopsy on the decedent under circumstances where it did not have statutory authority to perform an autopsy without the consent of the next of kin. She further alleged that the autopsy was performed to obtain body parts for transplant. Defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8), claiming that the plaintiff had failed to state a claim upon which relief could be granted. At the first hearing the motion was denied. However, the motion was thereafter granted at a rehearing after defendant argued that it had statutory authority to perform the nonconsensual autopsy and, thus, was protected from tort liability.

A motion for summary judgment brought pursuant to GCR 1963, 117.2(1) tests the legal sufficiency of the claims and is to be resolved by reference to the pleadings alone. In reviewing a grant of summary judgment under this subrule, this Court assumes that the factual allegations in the plaintiff's complaint are true and determines whether the claim, on the pleadings alone, is so clearly unenforceable as a matter of law that no factual development can permit recovery. Guilloz v Aetna Casualty & Surety Co, 146 Mich App 830, 833; 382 NW2d 189 (1985); Rodis v Herman Kiefer Hospital, 142 Mich App 425, 427-428; 370 NW2d 18 (1985).

State and local government agencies are immune from tort liability for injuries arising out of the exercise or discharge of a nonproprietary governmental function. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 591; 363 NW2d 641 (1984); MCL 691.1407; MSA 3.996(107). A governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute or other law. Ross, supra, pp 617-621. When a governmental agency engages in such an activity, it is immune from tort liability unless the activity is proprietary in nature or falls within one of the other statutory exceptions. Ross, supra, p 620.

The office of the county medical examiner is authorized by law pursuant to MCL 52.201; MSA 5.953(1), which provides:

The board of supervisors of each county of this state shall by resolution abolish the office of coroner, and appoint a county medical examiner to hold office for a period of 4 years. Should the office of county medical examiner become vacant before the expiration of the term of office, the board of supervisors may appoint a successor to complete the term of office. In counties having a civil system, the appointment and tenure of the medical examiner shall be made in accordance with the provisions thereof. County medical examiners shall be physicians licensed to practice within the state and shall be residents of the county for which they are appointed or of a neighboring county. Two or more adjoining counties, by resolution of the respective boards of supervisors thereof, may enter into common agreement to employ the same person to act as medical examiner for all of the counties.

Further, pursuant to MCL 52.205(4); MSA 5.953(5)(4), the county medical examiner may conduct an autopsy whenever he determines that such autopsy reasonably appears to be required pursuant to his duty to "make investigations as to the cause and manner of death in all cases of persons ... whose death was unexpected." MCL 52.202; MSA 5.953(2). See also Allinger v Kell, 102 Mich App 798, 811; 302 NW2d 576 (1981), modified on other grounds 411 Mich 1053 (1981).

Plaintiff argues, however, that the investigation as to the cause of the decedent's death under MCL 52.202; MSA 5.953(2) was improper because another physician had already determined the cause of death. That statute provides in pertinent part as follows:

County medical examiners or deputy county medical examiners shall make investigations as to the cause and manner of death in all cases of persons who have come to their death by violence; or whose death was unexpected; or without medical attendance during the 48 hours prior to the hour of death unless the attending physician, if any, is able to determine accurately the cause of death....

Contrary to plaintiff's argument, the limitation on the medical examiner in performing the autopsy where another physician certifies the cause of death is applicable only where the deceased did not die violently or unexpectedly, and when the decedent did not receive medical attendance within forty-eight hours prior to the death. Where the decedent's death was violent or unexpected, the medical examiner has the authority to investigate the cause of death even if another physician has already certified such cause.

Thus, as the operation of the Wayne County Medical Examiner's office is a governmental function and as plaintiff did not allege that the operation of the office falls within one of the statutory exceptions to immunity, defendant is immune from the cause of action alleged in plaintiff's complaint.

Plaintiff's other argument on appeal is that the trial court abused its discretion in denying her request to amend her complaint. We disagree.

GCR 1963, 118.1(a), now MCR 2.188(A)(4), provides:

Amendments. A party may amend his pleading once as a matter of course at any time before or within 15 days after a responsive pleading is served or, if the pleading is one to which no responsive pleading is required and the action has not been placed upon the trial calendar, he may amend it at any time before or within 15 days after it is served. Otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires. All amendments shall be filed in writing, dated, and numbered consecutively. Unless otherwise indicated therein, an amended pleading shall supersede the former pleading.

The grant or denial of a motion to amend is within the discretion of the trial court, and, absent abuse of discretion, the exercise of that discretion will not be reversed. McCalla v Ellis, 129 Mich App 452, 457; 341 NW2d 525 (1983), lv den 422 Mich 853 (1985). See Williams v Michigan, 144 Mich App 438, 447; 376 NW2d 117 (1985). Generally, a motion to amend is granted unless it would be unjust or futile. Williams, supra; McCalla, supra, see also Ray v Taft, 125 Mich App 314, 324; 336 NW2d 469 (1983); Crosby v Detroit, 123 Mich App 213, 223; 333 NW2d 557 (1983), lv den 422 Mich 890 (1985).

In the present case, the plaintiff did not make an offer of proof of what the proposed amendments would be. Thus, there was no proof that the amended complaint would have pled facts in avoidance of governmental immunity. And, the facts provided in the original complaint indicate that governmental immunity could not be avoided. Since an amendment would apparently have been futile, the trial court did not abuse its discretion in denying the plaintiff's request to amend her complaint.

Further, GCR 1963, 118.1 requires all amendments to be in writing. The plaintiff in this case never offered written amendments and the request to amend was oral. Hence, since the plaintiff did not comply with the rule, the trial court did not abuse its discretion by denying the request to amend. See McFadden v Detroit Bar Ass'n, 4 Mich App 554, 557; 145 NW2d 285 (1966).

Affirmed.