COEN
v.
OAKLAND COUNTY
Docket No. 85050.
Michigan Court of Appeals.
Decided July 11, 1986.Sommers, Schwartz, Silver & Schwartz, P.C. (by Jeremy L. Winer), for plaintiff.
Harvey, Kruse, Westen & Milan, P.C. (by Paul S. Koczkur and Robert G. Chaklos, Jr.), for Oakland County, South Oakland Community Mental Health Clinic, and Patricia Hopson, M.D.
*664 Before: MacKENZIE, P.J., and BEASLEY and C.W. SIMON,[*] JJ.
PER CURIAM.
Plaintiff, Catherine Coen, filed a medical malpractice action against defendants, Oakland County, South Oakland Community Mental Health Clinic, a Division of Oakland County Community Mental Health Services, Patricia Hopson, M.D., Sinai Hospital of Detroit, Comprehensive Psychiatric Services, P.C., Sandra Silver, as personal representative of the estate of Richard Kalman, D.O., deceased, and William M. Leuchter, M.D. Defendants-appellees, Oakland County, South Oakland Community Mental Health Clinic (clinic), which is owned and operated by Oakland County, and Patricia Hopson, M.D., who is employed by Oakland County at the clinic, brought a motion for summary judgment under GCR 1963, 117.2(1), now MCR 2.116(C) (7), claiming that they were entitled to governmental immunity in this matter pursuant to MCL 691.1407; MSA 3.996(107) and the common law. The trial judge granted defendants-appellees' motion for summary judgment and dismissed plaintiff's claims against defendants-appellees. Plaintiff appeals as of right.
The facts which gave rise to plaintiff's claim are not in serious dispute. Plaintiff is a young female who suffered from paranoid schizophrenia. From January, 1982, until December, 1982, she was treated by a private physician, defendant Richard Kalman, D.O. Dr. Kalman administered antipsychotic drugs to plaintiff. The antipsychotic drugs (Haldol and Mellaril) that were administered to plaintiff sometimes produce a side effect known as tardive dyskinesia. Tardive dyskinesia is a muscle disorder which causes uncontrollable muscle spasms, jerking and other disabling side effects.
*665 Plaintiff alleges that she began suffering symptoms of tardive dyskinesia in November, 1982. She goes on to allege that when symptoms of tardive dyskinesia appear, drug therapy should be discontinued. Despite the appearance of these symptoms, defendant Dr. Kalman allegedly continued administering antipsychotic drugs to plaintiff. We note that plaintiff's claims of medical malpractice against her private physician, defendant Kalman, are still pending and were not affected by the trial judge's grant of summary judgment to defendants-appellees.
In January, 1983, plaintiff began treating with defendant Dr. Hopson at defendant clinic. At this time, plaintiff allegedly continued to exhibit symptoms of tardive dyskinesia. Despite these symptoms, defendant Hopson allegedly continued treating plaintiff with the antipsychotic drugs through March, 1983. In March, 1983, plaintiff was admitted to Harper Grace Hospital where it was determined that she had developed a permanent condition of tardive dyskinesia.
On appeal, plaintiff first argues that the trial judge erred in granting summary judgment to defendant Oakland County and defendant clinic based on the governmental immunity statute.[1] In making this argument, plaintiff asserts that defendant Oakland County was not discharging a governmental function in operating the defendant clinic and, thus, neither defendant Oakland County nor defendant clinic were entitled to governmental immunity under the statute. We disagree.
In Ross v Consumers Power Co (On Rehearing),[2] the Michigan Supreme Court set out a broad test *666 for determining whether an activity involves a governmental function. The Ross Court concluded that a governmental function, for purposes of the governmental immunity statute, is an activity which is expressly or impliedly mandated or authorized by constitution, statute or other law.[3] Applying the Ross test to this situation, we conclude that the provision of mental health services by defendant Oakland County through defendant clinic involves an activity impliedly mandated by the state constitution. Specifically, Const 1963, art 4, § 51 and art 8, § 8 impliedly mandate defendant Oakland County to provide institutions, programs and services to its inhabitants suffering from mental handicaps.
In reaching our conclusion, we note that in Canon v Bernstein[4] this Court recently applied the Ross governmental function test and held that the provision of counseling and treatment to an outpatient by the Livingston County Community Mental Health Services facility was a governmental function and, thus, immune from tort liability under the statute. The Canon decision is directly analogous to the situation presented in the within case, and we agree with the conclusion reached in that case. Therefore, we conclude that the trial judge did not err in finding that defendant Oakland County and defendant clinic were engaged in a governmental function for purposes of the governmental immunity statute.
Plaintiff goes on to assert that the governmental activities of defendant clinic, which allegedly charged plaintiff a fee for its services, are proprietary in nature and, thus, the clinic is not entitled to governmental immunity pursuant to MCL *667 691.1413; MSA 3.996(113). We disagree. The statute defines proprietary function as any activity conducted primarily for pecuniary profit. The Ross Court held that the fact that a fee is charged for a particular portion of service, or that an incidental profit may be derived from such fees, does not transform an obvious governmental function into a proprietary one.[5]
In Faigenbaum v Oakland Medical Center[6] the Court found that in this age of governmental subsidies for health care it cannot be seriously maintained that the operation of a governmental care facility is a "proprietary function." We agree with the conclusion reached by the Faigenbaum Court in the area of health care service provided by governmental units and, thus, find that defendant clinic in this case was not engaged in a proprietary function for purposes of the governmental immunity statute. The fact that defendant clinic competes to some extent with health care services provided in the private sector does not render the clinic's functions as "proprietary" for purposes of the statute.[7]
Therefore, we conclude that the trial judge did not err in finding that defendant Oakland County and defendant clinic were engaged in a governmental function and were entitled to governmental immunity in this matter. The trial judge properly granted summary judgment to these defendants.
Plaintiff also argues on appeal that the trial judge erred in granting summary judgment to defendant Hopson based on the common-law doctrine *668 of qualified tort immunity applicable to officers, employees and agents of a governmental agency. The Supreme Court in Ross set forth the tests which are applicable in determining whether an individual is immune from tort liability:
Lower level officials, employees, and agents are immune from tort liability only when they are
1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;
2) acting in good faith; and
3) performing discretionary, as opposed to ministerial acts. [Ross, supra, pp 633-634.]
Plaintiff does not seriously argue that the first two tests were not met in this case. However, plaintiff does assert that defendant Hopson's administration of antipsychotic drugs to plaintiff involved a ministerial act, rather than a discretionary act. We disagree.
In Tobias v Phelps[8] this Court, in applying the Ross ministerial/discretionary test, adopted this Court's numerous pre-Ross decisions which held that medical decision making is inherently discretionary. The Tobias Court went on to hold that the execution of medical decisions involved ministerial acts. The Court then concluded that the defendant doctors' decisions whether to wean a patient from medication and whether or how often to monitor the patient's condition during the weaning process involved medical judgments and, thus, constituted discretionary acts. However, the Tobias Court also held that once the defendant doctors had decided to monitor the patient during the weaning process, the execution of that decision involved ministerial *669 acts. Thus, the defendants were immune from claims arising from the defendant doctors' initial decisions on weaning and monitoring the patient. However, the defendants were not immune from claims arising from their actual execution of the weaning and monitoring process.
Applying the Tobias analysis to this case, we believe defendant Hopson's decision to administer anti-psychotic drugs to plaintiff involved substantial medical judgment. Thus, Hopson's decision to administer antipsychotic drugs to plaintiff is directly analogous to the defendants' decisions in Tobias on whether to wean or monitor the patient. Hopson's decision did not merely involve the execution of a medical decision. Therefore, we conclude that Hopson's decision to administer antipsychotic drugs to plaintiff constituted a discretionary act and that defendant Hopson was immune from any claims arising from this decision.
In reaching this conclusion, we reject the analysis of the Ross ministerial/discretionary test made by another panel of this Court in Davis v Lhim (On Remand).[9] The Davis Court held that a defendant psychiatrist was not immune from a malpractice claim since he had no discretion to breach the standard of care imposed by the common law of malpractice. This holding in Davis results in a rule that, if a government official's professional conduct is negligent, he is not immune, but, if his conduct is not negligent, he is immune. This holding in Davis appears to destroy individual immunity for lower government officials whose conduct allegedly constitutes professional negligence. We do not believe the holding in Ross was intended to lead to such a far reaching result. We agree with the analysis in Judge CYNAR'S dissent in Davis and *670 refuse to apply the analysis made by the Davis majority to this case.
Therefore, we conclude that the trial judge did not err in finding that defendant Hopson was immune from plaintiff's claim in this case which arose out of Hopson's decision to administer antipsychotic drugs to plaintiff. The trial judge properly granted defendant Hopson's motion for summary judgment in this matter.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] MCL 691.1407; MSA 3.996(107).
[2] 420 Mich 567; 363 NW2d 641 (1984).
[3] Id., p 620.
[4] 144 Mich App 604; 375 NW2d 773 (1985), lv gtd 425 Mich 851 (1986)
[5] Ross, supra, pp 612-613; see Faigenbaum v Oakland Medical Center, 143 Mich App 303, 313-314; 373 NW2d 161 (1985), lv gtd 425 Mich 857 (1985).
[6] Faigenbaum, supra, p 314
[7] See Canon, supra, p 608.
[8] 144 Mich App 272, 280-281; 375 NW2d 365 (1985), lv gtd 424 Mich 859 (1985).
[9] 147 Mich App 8; 382 NW2d 195 (1985), lv gtd 425 Mich 851 (1986).