Davis v. Lhim , 124 Mich. App. 291 ( 1983 )

Cynar, J.

(dissenting). While recognizing that the writing of the majority opinion required lengthy study and consideration, I must respectfully dissent for the reason that defendant is not liable because he is protected from liability by governmental immunity.

The Michigan Supreme Court has specifically ruled that the operation of a state mental hospital is a governmental function. Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978). The care, treatment, custody, diagnosis, evaluation and release rendered by Northville State Hospital constituted the performance of a governmental function which provided the state with the defense of immunity from liability.

Immunity afforded to the Northville State Hospital extends to an individual staff psychiatrist employed by Northville State Hospital while acting within the scope of a governmental function. Fuhrmann v Hattaway, 109 Mich App 429; 311 NW2d 379 (1981), lv den 414 Mich 858 (1982). The defendant, at all times relevant to this case, was a psychiatrist at the Northville State Hospital, a state mental hospital, where the specific activity complained of arose out of the exercise or discharge of a governmental function.

In Fuhrmann, the Court concluded that the Center for Forensic Psychiatry performed a governmental function. Further, the Court concluded that the defendant psychiatrists were "acting within the scope of a governmental function. As such, they are cloaked with governmental immunity.” Fuhrmann, supra, p 435. Additionally, the Court continued by reviewing the case under the discretionary/ministerial standard:

"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, supra, p 436.

The majority of the Supreme Court has held, in effect, that a public employee is protected by governmental immunity if the alleged tortious conduct falls within the "scope of his employment”. See Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979).

Under the facts in this case, the defendant is cloaked with governmental immunity from liability whether we apply the "scope of employment” or the discretionary/ministerial standard.