Pomilee v. City of Detroit

Per Curiam:.

This is an appeal as of right from the trial court’s order of January 18, 1980, granting defendants Berman’s and Kavanaugh’s motion for summary judgment based on governmental immunity.

Annie Mae Pomilee, by her guardian, Willie *123Mae Pomilee, commenced this suit in the Wayne County Circuit Court on March 31, 1976, and in the Court of Claims on July 26, 1976. Plaintiff alleged that Annie Mae Pomilee was admitted to the Detroit Psychiatric Institute on March 7, 1975. Ms. Pomilee was hallucinating and delusional; her character was aggressive and destructive. On or about March 18, 1975, she allegedly suffered a brachial plexus injury to her right arm while placed in a seclusion ward room. She was treated as an inpatient at Oakland Medical Center from March 19, 1975, to April 14, 1975, for that injury.

Plaintiff alleged that Dr. David Berman and Mr. Patrick Kavanaugh, clinical co-directors of the Detroit Psychiatric Institute, were authorized to "conduct, control, implement, and govern the care, treatment, and attention of patients at the Detroit Psychiatric Institute”. Dr. Berman was the medical doctor assigned to the "team” treating Ms. Pomilee and Mr. Kavanaugh was the clinical psychologist on that team.

Plaintiff, in effect, charges the individual defendants with medical malpractice or negligent conduct.

The Court of Claims granted plaintiffs motion to consolidate the circuit court and Court of Claims cases in an order filed October 29, 1976. In that order, the Court of Claims dismissed all parties but the State of Michigan in the Court of Claims action. The Michigan Department of Mental Health operated the Detroit Psychiatric Institute and rented building space from the City of Detroit.

The Detroit Psychiatric Institute was dismissed from the circuit court action by stipulation and order dated July 16, 1976.

On November 23, 1979, the circuit court heard arguments on defendants Berman’s and Kava*124naugh’s motion for summary judgment based on the failure to state a valid claim. GCR 1963, 117.2(1). Defendants argued that they were protected by governmental immunity as their allegedly negligent acts were performed while they exercised a governmental function. The trial judge granted that motion. An order to that effect was filed January 18, 1980. Following a trial held April 21, 1980, a jury found no cause of action against the City of Detroit for premises liability, MCL 691.1406; MSA 3.996(106).

The trial judge in the Court of Claims granted summary judgment as to the Detroit Psychiatric Institute on the basis of governmental immunity in an order filed April 25, 1980. A final order of judgment was filed May 20, 1980, entering no cause of action in the Court of Claims against plaintiff in favor of all defendants. Plaintiff filed a claim of appeal on June 2, 1980, limiting this Court’s review to the circuit court’s grant of summary judgment to defendants Berman and Kavanaugh.

Section 7 of the applicable statute reads as follows:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” MCL 691.1407; MSA 3.996(107).

We believe this case is governed by Perry v Kalamazoo State Hospital, 404 Mich 205; 273 *125NW2d 421 (1978). Plaintiff asserts, however, that that case applies only to institutions and not to their owners, employees and agents. The trouble with that argument is that the exception is larger than the rule. Institutions, such as mental hospitals or prisons or jails, have no life of their own, nor do municipalities or agencies of state government. They can only operate through persons— live bodies. To say that a county jail is immune, but the jailers are liable, is to completely negate the legislatively mandated immunity.

We see little point here in trying to analyze what each Justice of our Supreme Court held in Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979). Nor need we consider whether the discretionary-ministerial dichotomy is still a proper test. Suffice it to say that very little of what a medical doctor or psychologist ever does is ministerial. See Cook v Bennett, 94 Mich App 93; 288 NW2d 609 (1979).

We believe the proper rule with respect to government officers, agents and employees is essentially that stated by Judge Bash ara in Everhart v Roseville Bd of Ed, 108 Mich App 218; 310 NW2d 338 (1981). Paraphrased: Officers, agents and employees of immune institutions are themselves cloaked with governmental immunity when acting within the scope of their employment.

Plaintiff likewise asserts that this creates a double standard with respect to medical malpractice, i.e., between the state-employed doctor and the private practitioner. It certainly does. But most laws are to some extent discriminatory.

It is only when discrimination becomes unlawful that it is condemned. There is no suggestion here that the immunity statute is unconstitutional.

The judgment of the trial court is affirmed as to defendants Berman and Kavanaugh.

Affirmed.