Joplin v. University of Michigan Board of Regents , 173 Mich. App. 149 ( 1988 )

Cynar, J.

(dissenting).

I respectfully dissent and would reverse the trial court’s order of summary disposition in favor of defendants Drescher and Hebert.

In her complaint, plaintiff alleged that, on February 10, 1984, she entered the University of Michigan Hospital as an out-patient for the purpose of terminating a pregnancy. Defendants Drescher and Hebert performed a dilatation and evacuation procedure and thereby terminated plaintiffs pregnancy. On February 12, 1984, plaintiff returned to the hospital complaining of abdominal pain. An examination revealed that plaintiffs uterus had been perforated. Plaintiff was admitted to the hospital as an in-patient and surgery was performed to repair the perforation. Subsequently, plaintiff continued to have complaints of abdominal pain and again returned to the hospital. On February 22, 1984, an ultrasound demonstrated that a portion of the fetal skull had migrated through the perforated uterus into plaintiffs abdominal cavity where it still remained. Consequently, further surgery was performed and the remaining fetal material was removed.

This Court has previously held that, while medical decisions are discretionary in nature, the execution of a medical decision is a ministerial act. Sayles, v Baughman, 163 Mich App 58, 62; 413 NW2d 730 (1987); Brown v Northville Regional Psychiatric Hospital, 153 Mich App 300, 307; 395 NW2d 18 (1986); Tobias v Phelps, 144 Mich App 272, 281; 375 NW2d 365 (1985).

In this case, defendants decided to perform a dilatation and evacuation procedure in order to terminate plaintiff’s pregnancy. That medical decision was a discretionary act. However, defendants’ execution of that medical decision was a ministerial act for which governmental immunity is not available. Sayles, supra; Brown, supra; Tobias, supra. Because the act complained of in this case is the execution of a surgical procedure, and not a discretionary act, defendants Drescher and Hebert should not be entitled to immunity.

I would reverse and remand for further proceedings.