Green v. Comstock

Murphy, J.

(dissenting). I dissent.

Plaintiffs specifically alleged in Docket No. 107345 that defendant nurses breached their duty of care to observe and chart the child’s breathing sounds and suction the endotracheal tube as needed to maintain an airway. Based upon my review of the record, it appears that these allegations involve the more critical factors in the child’s death. The majority correctly cites applicable authority for the proposition that execution of medical decisions involves ministerial acts. However, the majority chooses to disregard that authority in coming to the conclusion that the above-alleged acts required personal deliberation and judgment.

Our Supreme Court in Ross v Consumers Power Co (On Reh), 420 Mich 567, 635; 363 NW2d 641 (1984), in explaining the distinction between "ministerial-operational” acts as opposed to "discretionary-decisional” acts stated:

In a nutshell, the distinction between "discretionary” and "ministerial” acts is that the former involves significant decision-making, while the latter involves the execution of a decision and might entail some minor decision-making. Here too, for clarity, we would add the word "operational” so the operative term would be "ministerial-operational” acts.

In my view, it is clear that the decision to insert an endotracheal tube in a patient is a discretion*634ary act. Obviously, there is a certain degree of significant decision making involved in determining that such a procedure is necessary. However, the actual insertion of the tube and maintaining it are merely the execution of that decision. At most, executing that decision might involve some minor decision making. Therefore, the actual insertion and maintenance of the endotracheal tube are ministerial acts. As for plaintiffs’ allegations that defendant nurses breached their duty of care to observe and chart the child’s breathing sounds, I am hard pressed to imagine how these acts can be anything other than ministerial ones. It surely does not involve significant decision making to observe a patient or record a breath sound.

The majority in this case relies on Joplin v Univ of Michigan Bd of Regents, 173 Mich App 149, 154; 433 NW2d 830 (1988), for the proposition that this Court must recognize that execution of a medical decision may involve a series of medical decisions requiring personal deliberation and judgment regardless of whether they were undertaken in the course of executing the initial decision. However, I find it telling that the act which was determined to be discretionary in that case was surgery; specifically, dilatation and evacuation. Moreover, there was a dissent in Joplin which concluded that even the act of performing surgery was a ministerial act for which governmental immunity is not available. Joplin, supra, p 155. Because the act in Joplin found to be a discretionary one was surgery, as compared to the alleged acts involved in this case, I am not particularly persuaded by the majority’s reliance on the Joplin decision.

The majority opinion then relies on several cases for the proposition that a professional’s deviating from professional standards does not trans*635form a discretionary act into a ministerial one. However, based upon my review of the facts in this case, I do not see where that proposition is applicable to the analysis of plaintiffs’ allegations in the case at bar.

In conclusion, I believe that the acts of observing a patient, charting the patient’s progress and inserting and suctioning an endotracheal tube are clearly ministerial ones. To classify these ministerial acts as discretionary inappropriately and unnecessarily cloaks defendants’ acts in a veil of governmental immunity. I would reverse the lower court’s order granting defendants’ motion for summary disposition in Docket No. 107345.