White v. City of Detroit

74 Mich. App. 545 (1977) 254 N.W.2d 572

WHITE
v.
CITY OF DETROIT

Docket No. 27287.

Michigan Court of Appeals.

Decided March 30, 1977.

Kelman, Loria, Downing, Schneider & Simpson (by Ina C. Cohen), for plaintiff.

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

Before: T.M. BURNS, P.J., and QUINN and M.F. CAVANAGH, JJ.

M.F. CAVANAGH, J.

Plaintiff Robert White brought suit against the City of Detroit for compensation for injuries suffered in 1971 arising out of alleged negligent diagnosis and treatment by medical personnel at Detroit General Hospital. Plaintiff appeals by right from the circuit court's grant of defendant's motion for summary judgment on the ground of governmental immunity under MCLA 691.1407; MSA 3.996(107).

Although plaintiff cites many cases which indicate that the correct method to assert governmental immunity is through a motion for accelerated judgment under GCR 1963, 116, the Supreme Court has indicated that a defendant should claim governmental immunity through a motion for summary judgment under GCR 1963, 117.2(1). McCann v Michigan, 398 Mich. 65, 77; 247 NW2d 521, 523-524 (1976) (opinion of RYAN, J.), Galli v Kirkeby, 398 Mich. 527; 248 NW2d 149 (1976) (opinion of WILLIAMS, J.).

The burden rests on the plaintiff to plead facts in avoidance of immunity.

McCann v Michigan, supra, Galli v Kirkeby, supra, and Thomas v Department of State Highways, 398 Mich. 1; 247 NW2d 530 (1976), also settle adversely to plaintiff his second claim that the governmental immunity statute violates equal protection of the law. While the majorities in these three cases did not explicitly consider the constitutionality of MCLA 691.1407; MSA 3.996(107), their holdings strongly imply the validity of the line of Michigan authority which upholds the statute against equal protection attack. See Knight v City of Tecumseh, 63 Mich. App. 215; 234 NW2d 457 (1975), Snow v Freeman, 55 Mich. App. 84, 86; 222 NW2d 43, 45 (1974).

Plaintiff lastly argues that diagnosis and treatment at a community owned and operated hospital is not a "governmental function" so as to confer immunity under MCLA 691.1407; MSA 3.996(107).^[1]Thomas v Department of State Highways, supra, indicates that the Legislature intended to protect those governmental activities which were given immunity under common law. Hence our task is to determine whether the particular activities at issue were protected at common law; if so, MCLA 691.1407; MSA 3.996(107) continues that protection.

While other areas may require us to use our "creative genius" to resolve the issue of "governmental function", Thomas v Department of State Highways, supra, at 11; 247 NW2d at 533, an unbroken line of Michigan authority holds that operation of a community owned hospital is a governmental function. Martinson v Alpena, 328 Mich. 595; 44 NW2d 148 (1950), Nicholson v Detroit, 129 Mich. 246; 88 N.W. 695 (1902), Knight v City of Tecumseh, supra, Lockaby v Wayne County, 63 Mich. App. 185, 190-191; 234 NW2d 444, 446 (1975), Snow v Freeman, supra. We are compelled to agree that the treatment of plaintiff by Detroit General Hospital was a governmental function, rendering the City of Detroit immune from liability.

Affirmed. No costs are awarded.

QUINN, J., concurred.

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

I believe that the majority has incorrectly analyzed the immunity question.

The test is not whether the particular governmental institution being sued was generally protected from liability in the past, but whether the "specific tortious activity alleged against the state or its agencies is within the protection of the immunity doctrine:". McCann v Michigan, 398 Mich. 65, 80; 247 NW2d 521 (1976), RYAN, J., concurring.

Plaintiff's allegations present a grim picture. While in his jail cell on August 12, 1971, plaintiff began to suffer from double vision, headaches, dizziness, nausea, and chest pains. Despite his pleas for medical assistance plaintiff was not taken to a doctor. Four days later plaintiff, while still suffering from the symptoms, experienced a more intense attack. He was taken to Detroit General Hospital, where his condition was diagnosed as a cerebral vascular accident (stroke). Plaintiff was returned to the jail, still suffering from the symptoms, without having received medical treatment. Two days after being returned to jail, plaintiff was taken to the hospital again. A doctor examined plaintiff and recommended that he be referred to the neurologic clinic. Instead, plaintiff was returned to the jail. Despite plaintiff's continued suffering he was not taken to the neurologic clinic for another two weeks. By then plaintiff was suffering from an impaired ability to walk, speak and control his reflexes. On September 2, 1971, a physician at the hospital again diagnosed plaintiff's condition as a stroke and ordered his admission to the hospital. Plaintiff was not admitted to the hospital until September 14, two weeks later. He was discharged on October 26, 1971, with the diagnosis that he had suffered a serious brain stem lesion.

These are not mere allegations of misfeasance or nonfeasance. The actions of the jail and hospital personnel, if as alleged, would constitute gross negligence or willful and wanton misconduct. Such conduct should not be regarded as protected activity within the scope of a governmental function. To tell this plaintiff that he cannot be compensated because those who injured him happened to work for government agencies is wrong.

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

NOTES

[1] Plaintiff's claim on appeal that the operation of Detroit General Hospital must constitute a "proprietary function" within MCLA 691.1413; MSA 3.996(113) is of no avail, as his complaint is bereft of any allegation that the hospital is operated primarily for pecuniary gain.