Davis v. Lhim

Cynar, J.

(dissenting). The Supreme Court has remanded this case to this Court for reconsideration in light of Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). The grounds for appeal are, first, whether the defendant was immune from liability for an alleged act of negligence in discharging John Patterson, and, second, whether defendant failed to warn the plaintiffs decedent of the danger to her posed by her son, in the event of his discharge.

The Court in Ross addressed the issue of individual immunity. The Court defined this immunity, insofar as applicable herein, as follows:

*18"We therefore hold that * * * [l]ower 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;
"3) performing discretionary, as opposed to ministerial acts.” (Footnote omitted.) Ross, supra, pp 633-634.

As to the definition of discretionary, the Court stated:

" 'Discretionary’ acts have been defined as those which require personal deliberation, decision and judgment. [Citation omitted.] This definition encompasses more than quasi-judicial or policy-making authority, which typically is granted only to members of administrative tribunals, prosecutors, and higher level executives. However, it does not encompass every trivial decision, such as 'the driving of a nail,’ which may be involved in performing an activity. For clarity, we would add the word 'decisional’ so the operative term would be 'discretionary-decisional’ acts.
"* * * An individual who. decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. * * * 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.
"Many individuals are given some measure of discretionary authority in order to perform their duties effectively. Therefore, to determine the existence and scope of an individual’s immunity from tort liability in a particular situation, the specific acts complained of, rather than the general nature of the activity, must be examined. The ultimate goal is to afford the officer, employee, or agent enough freedom to decide the best method of carrying out his or her duties, while insuring *19that the goal is realized in a conscientious manner.” (Footnote omitted.) Ross, supra, pp 634-635.

There is no indication that Fuhrmann v Hattaway, 109 Mich App 429; 311 NW2d 379 (1981), lv den 414 Mich 858 (1982), is in conflict with Ross. In Fuhrmann, the Court stated at 436-437:

"Plainly, the activities of the defendant psychiatrist 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.
"Finally, there seems to be little doubt that medical decison-making is inherently discretionary.”

Accord, Adams v Northville State Hosp, 131 Mich App 583, 585; 345 NW2d 207 (1983), lv den 422 Mich 890 (1985), Pomilee v Detroit, 121 Mich App 121, 125; 328 NW2d 595 (1982), lv den 422 Mich 890 (1985), Knapp v Moreno, 137 Mich App 769, 775; 359 NW2d 560 (1984).

According to the majority, there is no suggestion that defendant was not acting within the scope of his employment and within the scope of his authority or that defendant was not acting in good faith.

Whether John Patterson should have been discharged from the state mental hospital or whether there was a need to warn plaintiffs decedent involved complex medical discretionary decision-making. Since the defendant is cloaked with governmental immuntiy from liability, I respectfully dissent and support reversal.