Tryc v Michigan Veterans’ Facility

Riley, J.

I respectfully dissent. I believe that a narrow construction of the public hospital exception to the governmental immunity statute compels the conclusion that the Michigan Veterans’ Facility is not a “hospital.” The facility does not provide “active treatment” of conditions “requiring the daily direction or supervision of a physician.” (Emphasis added.)1 For this reason, I conclude that the facility is protected by governmental immunity because the public hospital exception does not apply. I would affirm the decision of the Court of Appeals.

i

The Michigan Veterans’ Facility was established by statute in 1885, MCL 36.1 et seq.; MSA 4.871 et seq., for members of the armed forces “who are disabled by disease, wounds, or otherwise, and who have no adequate means of support, and by reason of their disability are incapable of earning their living and who would be otherwise dependent upon public or private charity . . . .” MCL 36.11(1); MSA 4.878(1). In Mason v Bd of *144Managers of Michigan Soldiers’ Home, 181 Mich 347, 353; 148 NW 220 (1914), citing Wolcott v Holcomb, 97 Mich 361; 56 NW 837 (1893), this Court explained the reason for the foundation of this facility:

[The] object [of the act] was to furnish a home, which would be a more congenial and fitting refuge than the ordinary charitable institution, to that class of honorably discharged veterans who, disabled by disease, wounds, or otherwise from earning their living, and having no adequate means of support, would otherwise become objects of common charity.

The State of Michigan provides that governmental agencies are immune from tort liability when engaged in the exercise or discharge of a governmental function. MCL 691.1407(1); MSA 3.996(107)(1). This statute provides for broad immunity. Wade v Dep’t of Corrections, 439 Mich 158, 166; 483 NW2d 26 (1992); Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595; 363 NW2d 641 (1984). However, the statute provides a public hospital exception to this rule:

(4) This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility. As used in this subsection:
(b) “Hospital" means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. The term does not include a hospital owned or operated by the department of mental health or a hospital operated by the *145department of corrections. [MCL 691.1407(4)(b); MSA 3.996(107)(4)(b) (emphasis added).]

Exceptions to governmental immunity are to be narrowly construed. Wade, supra at 166, citing Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 245; 393 NW2d 847 (1986).

The appeal in this case is limited to determining whether the facility is a “hospital” within the definition provided by MCL 691.1407(4)(b); MSA 3.996(107)(4)(b). Under MCR 2.116(C)(7), the Court of Claims was required to examine the pleadings, affidavits, depositions, and other documentary evidence in answering this question. There was no factual dispute about the particular services the facility provided or about Richard Tryc’s medical record. Thus, whether the facility was a “hospital” under the statute did not require a factual finding and, as a matter of pure statutory interpretation, was a question of law subject to de novo review. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). Consequently, it was a legal matter for the trial court to decide.

n

a

In interpreting the public hospital exception, the majority concludes that the facility would meet the definition of a “hospital” under the statute even if it merely offered medical services to residents on a daily basis: *146Such an interpretation elirninates the significance of the term “daily” from the statute. This Court is bound to read the statute narrowly. Wade, supra at 166. The Court must also read the statute to ensure that every word has meaning and to avoid rendering any word nugatory. Altman v Meridian, 439 Mich 623, 635; 487 NW2d 155 (1992). The statute provides that a “hospital” offer services for conditions that “requirfe] the daily direction or supervision of a physician.” MCL 691.1407(4)(b); MSA 3.996(107)(4)(b) (emphasis added). The term “daily” in the statute modifies the kind of direction or supervision that the physician must provide, not the kind of care that the facility’s nursing staff must provide while under the supervision of a physician. The physician must daily direct or supervise a patient’s treatment. I think this level of care is met when the physician either examines the patient on a daily basis or directs the medical staff on a daily basis to take some action regarding the patient’s medical care. The fact that nurses provide daily medical care while under the general direction or supervision of a physician cannot satisfy this definition. Under the majority’s interpretation of the statute, the facility would meet the definition of a “hospital” under the public hospital exception if it offers daily medical services for conditions that only require *147the general direction or supervision of a physician. This totally changes the meaning of the statute.

*145[T]he statute only requires daily physician direction or supervision. [Footnote defining the terms “direction” and “supervision” omitted.] Each time a nurse administers medication, it is done under the direction of a physician. A phy*146sician’s order directing the daily administration of a medication, or a policy requiring that a given order be renewed daily by a physician,[2] clearly satisfies the criteria. [Ante, pp 137-138 (emphasis added).]

*147There is no dispute that at the time of Tryc’s death the facility only maintained a single, full-time, on-staff physician for the entire facility. The facility also had a contract with Metropolitan Hospital in Grand Rapids, which provided six other physicians who rotated through the facility. This rotation created the equivalent of two full-time physicians for the facility except for weekends and evenings. The facility’s three residential buildings had “accommodations for 763 members . . . .”3 Although the record does not indicate how many veterans were receiving care in the three residential buildings at the time of Tryc’s death in March 1990, there were 690 veterans at the facility in August 1991. If this were a “hospital” as defined by the statute, there would be only the equivalent of two physicians to provide daily direction or supervision for the observation, diagnosis, and active treatment for almost seven hundred veterans.

The majority concludes that “[t]he touchstone of the exception is the type of care offered to and required by an individual, not the general character of the facility.” Ante, p 137. Even conceding this point, there is no evidence to support the claim that on a daily basis the facility’s physician, Dr. Winifred Eshragh, directed or supervised Richard Tryc’s treatment or the treatment of any other resident at the facility. In particular, using the ordinary meaning of *148the statute’s terms, Dr. Eshragh did not provide direction or supervision for Tryc’s medical care every day for four months merely because she had assessed his medical needs after he was admitted and instructed the nurses on that day to provide him daily medical care in accordance with the long-term care assessment.

B

In examining a similar question before this Court, the Court of Appeals in Winklepleck v Michigan Veterans’ Facility, 195 Mich App 523, 535; 491 NW2d 251 (1992), held that the plaintiff did not create a genuine issue of material fact about whether the Michigan Veterans’ Facility in Grand Rapids was a hospital under the public hospital exception. The plaintiff, Eva Winklepleck, sued the facility for negligence after Kenneth Winklepleck died in an accident at the facility. Kenneth Winklepleck, a veteran, suffered from multiple sclerosis and was a resident receiving care at the facility when he was dropped from his bed while being moved by an hydraulic device.

The Court of Appeals concluded that the Court of Claims erred by resolving the issue “as a matter of fact and law” about whether the facility was a hospital because the Court of Claims “should have confined itself to deciding whether defendants’ motion was properly supported” in that case under MCR 2.116(C)(10). The Court concluded that its “review of the record indicates that [Winklepleck’s] proffered evidence does not raise a genuine issue of material fact with regard to this question.” Id. at 534. However, whether the facility is a hospital under the public hospital exception is a legal question for the trial court to resolve even though it must examine documentary evidence. The Court in Winklepleck wrongly suggested that if Winklepleck had pro*149duced more compelling evidence that the facility was a hospital, this would have created a genuine issue of material fact requiring the jury to make a factual finding regarding whether the facility fit the statutory definition. Yet, the application of this statute only requires statutory interpretation and is not a matter for the jury.

Nevertheless, I believe that the Court in Winklepleck reached the proper result. The Court noted that the medical services provided by the facility, as identified in the Member Guide Book, were “not inconsistent” with the services provided in a nursing home as defined by statute. Id. at 535. The Court persuasively argued this point:

It is one thing to have physicians available or on call on a daily basis for the benefit of those who periodically need the attention of a physician (as is the case in a nursing home). It is quite another thing to offer care to those whose conditions require the daily direction or supervision of a physician. Furthermore, that the activities of nurses might be under daily supervision of physicians is not controlling. Under the statute, it is the patients’ conditions that must require daily supervision of a physician before a facility meets the test of being a hospital. [Id. at 535 (emphasis added).]

I agree with this reasoning.

c

On the basis of its interpretation of the meaning of “hospital” under the public hospital exception, the majority concludes that the evidence on the record indicates that the facility offers services to residents with conditions that require the daily direction of supervision of a physician. Ante, p 138. I disagree. In reviewing the same evidence, I believe it only confirms that the facility was not a “hospital” under the statute.

*150The majority contends from the depositional testimony of Thomas Lindsay, the commandant of the facility, that he admitted that the facility provided active daily treatment of chronic and rehabilitative conditions and that the full-time physician provided daily direction for the medical care of the residents. Ante, pp 138-139. The majority quotes a section of Lindsay’s testimony in which he noted that the facility provides daily active treatment for residents who suffer from chronic and rehabilitative problems. Id., pp 139-140. However, Lindsay only testified that the facility, or in other words, the nursing staff, cared for the residents on a daily basis. This testimony does not support the claim that Dr. Eshragh examined these patients on a daily basis, or that Dr. Eshragh directed or supervised daily the facility’s staff in the nursing care it provided these residents.

Lindsay did testify that the physician at the facility provided daily direction or supervision, but he said only to “[s]ome of the residents on a particular rotation.” Contrary to the majority’s assertion, Lindsay was not stating that Dr. Eshragh examined a certain selection of residents on a daily basis. Rather, in the context of his other testimony, there is no question that Lindsay was merely explaining that Dr. Eshragh daily examined some of the residents, not that she examined certain residents on a daily basis. There is no evidence to support the claim that Dr. Eshragh examined any facility resident on a daily basis, or that she provided daily direction or supervision to the nursing staff for the care of any particular resident. Moreover, even if Dr. Eshragh had provided daily direction for a particular resident’s care, that does not mean that the resident’s condition necessarily required this care. See Winklepleck, supra at 535.

The majority also relies on the facility’s brochures to support its conclusion that it operated as a “hospital” under the statute. However, the Member Guide Book *151clearly indicated in its introduction the kinds of services the facility provides:

Skilled nursing care, basic nursing care, and supervised personal (domiciliary) care are all provided on th[e] campus [of the Michigan Veterans’ Facility].

The list of services the facility offers as identified in the “Michigan Veterans’ Facility, A Century of Caring” brochure also contradicts the conclusion that the facility provided the kind of acute care necessary to meet the statute’s definition of a “hospital.”4 The only *152listed service that suggests that the facility cares for veterans with conditions requiring daily physician supervision is “[s]pecial [c]linics in [s]urgery [and] . . . [o]rthopedics.” However, Lindsay testified in his deposition, and plaintiff does not dispute, that the facility did not offer surgery as a service. The facility sends veterans who need surgery to Metropolitan Hospital in Grand Rapids. Otherwise, the listed services are the kinds of services that a facility provides for individuals who need long-term care, not for individuals whose conditions require daily physician direction or supervision. They are not the basic services provided by an acute medical care facility, i.e., a hospital.

The majority also refers to the facility’s written policies, suggesting that they were an indication that the facility’s physician daily directed or supervised the resident’s care. In support of its conclusion, the majority cites the facility’s policy manual of Janu*153ary 18, 1989, which required that the use of a restraint, like the vest worn by Tryc, be renewed by a physician every twenty-four hours. Ante, p 141. However, this policy was replaced by a new policy, effective September 26, 1989, more than a month before Tryc was admitted. The new policy did not require that a physician renew his order every twenty-four hours but only required that he specify the “length of time [its use was] authorized.”

Moreover, Dr. Eshragh never authorized the use of a physical restraint for Tryc; she only authorized the use of the vest as a “protective device” to protect him from falling out of bed and to allow the staff to feed him. The facility’s policies only required that Dr. Eshragh review the vest’s use as a protective device on a monthly basis. Even if used as a restraint, these policies still only required that Dr. Eshragh review its use monthly. As the Director of Clinical Programs at the facility, Barbara Winbume, explained, “[d]octors rewrite their orders every 30 days, giving the length of time for it to be in effect or length of time for [the restraint] to be on the patient.” She added “[generally [doctors’ orders are written every 30 days” for the use of a restraint.

Finally, the majority contends that Tryc’s medical records indicate that he was under the daily supervision and direction of a physician. I disagree. After Tryc’s admission to the facility he was given an initial assessment and treatment plan. The majority notes that Dr. Eshragh ordered laboratory studies, an electrocardiogram, and x-rays, and prepared a long-term care assessment. The long-term care assessment directed that Tryc receive medication, wear the protective vest in bed, and use the geriatric chair for *154meals and agitation. Tryc received medication daily, and the facility staff kept daily records of his feeding and diet. The nursing staff also kept frequent interdisciplinary progress reports regarding his condition. However, there were only seven physician progress notes in his file during the approximately four months Tryc resided at the facility before his death. At one point, more than two months elapsed between physician progress notes: Dr. Eshragh entered the fourth note on November 25, 1989, and the fifth progress note on February 13, 1990. Of the sixteen medication orders5 written by a physician during these four months, ten were issued within the first three weeks of Tryc’s admission. Only six were written over the next three months. Thus, the record demonstrates that Tryc’s condition did not require daily direction or supervision of a physician.

m

A

I believe that, under the undisputed facts of this case, the public hospital exception is unambiguous. Its definition of “hospital” does not include the Michigan Veterans’ Facility because the facility does not offer services for residents with conditions that required daily physician supervision or direction. Even if the statute were ambiguous about what constitutes “daily” physician supervision or direction, the interpretation that I urge is supported by the principles of statutory construction and by the uncontroverted sworn statements on the record. Moreover, this interpretation also confirms the *155common-sense conclusion that the Michigan Veterans’ Facility would be, in ordinary terms, called a nursing home, not a hospital.

The 1986 amendment creating the public hospital exception to the governmental immunity statute used virtually identical language to define “hospital” as the Public Health Code in MCL 333.20106(5); MSA 14.15(20106)(5).6 The Public Health Code, enacted in 1978, governs health facilities including nursing homes and hospitals. The Legislature is held to be aware of the existence of the law in effect at the time of its enactment. Malcolm v East Detroit, 437 Mich 132, 139; 468 NW2d 479 (1991). Moreover, this Court has explained: “It is fundamental that adoption of language requires adoption of construction. Identical language should certainly receive identical construction when found in the same act.” People ex rel Simmons v Munising Twp, 213 Mich 629, 633; 182 NW 118 (1921). Of course, the governmental immunity act is a different act from the Public Health Code. Nevertheless, the same words used in different statutes on the same subject generally will have the same meaning. If the statutes relate to different subjects, they may not have the same meaning. 73 Am *156Jur 2d, Statutes, § 233, p 416. Here, the acts do have different purposes. Even so, by importing the identical,7 complex, thirty-seven word definition of “hospital” from the Public Health Code, the Legislature likely intended to define “hospital” with the same meaning in the governmental immunity statute as in the code.

The Public Health Code provides a definition of a nursing home under MCL 333.20109(1); MSA 14.15(20109)(1) that would accurately define the kind of care the facility provides, except that the code specifically excludes the facility from the definition:

“Nursing home" means a nursing care facility, including a county medical care facility, but excluding a hospital or a facility created by Act No. 152 of the Public Acts of 1885, as amended, being sections 36.1 to 36.12 [the Michigan Veterans’ Facility] of the Michigan Compiled Laws, that provides organized nursing care and medical treatment to 7 or more unrelated individuals suffering or recovering from illness, injury, or infirmity. [Emphasis added.]

The Public Health Code excludes the Michigan Veterans’ Facility from the definition of a nursing home, presumably because the facility has its own statutory scheme governing its operation, MCL 36.1 et seq.; MSA 4.871 et seq. Thus, the Legislature’s exclusion of the facility from this definition does not indicate that the facility was not performing the same functions as a nursing home.

In addition to defining a nursing home, the Public Health Code, under MCL 333.21715; MSA 14.15(21715), requires that a nursing home offer cer*157tain kinds of care and services that aptly describe those provided by the facility in this case:

(1) A nursing home shall provide:
(b) A program of planned and continuing medical care under the charge of physicians.
(2) Nursing care and medical care shall consist of services given to individuals who are subject to prolonged suffering from illness or injury or who are recovering from illness or injury. The services shall be within the ability of the home to provide and shall include the functions of medical care such as diagnosis and treatment of an illness; nursing care via assessment, planning, and implementation; evaluation of a patient’s health care needs; and the carrying out of required treatment prescribed by a physician. [Emphasis added.]

This description highlights one of the critical differences between the statutory definition of “hospital” and the Public Health Code’s definition of “nursing home.” A “hospital” treats patients with acute medical needs by providing “active” treatment for patients with conditions “requiring” daily physician direction or supervision. MCL 691.1407(4)(b); MSA 3.996(107)(4)(b) and MCL 333.20106(5); MSA 14.15(20106)(5). In contrast, a “nursing home” addresses the long-term medical needs of individuals subject to “prolonged suffering” or who are “recovering” from an illness or injury by providing “[a] program of planned and continuing medical care under the charge of physicians.” MCL 333.21715; MSA 14.15(21715).

By excluding hospitals from its definition of nursing homes, the Public Health Code makes the definí*158tions of these two kinds of health facilities mutually exclusive. In doing so, the Public Health Code is able to require hospitals to seek licensure, MCL 333.21501 et seq.; MSA 14.15(21501) et seq., separate from the licensure provisions for nursing homes, MCL 333.21701 et seq.; MSA 14.15(21701) et seq. Thus, under the Public Health Code, a nursing home cannot also be a hospital.

Relying on the definitions of the Public Health Code, this facility performs the same function as a nursing home. It is not a hospital under the Public Health Code and, therefore, is not a hospital under the public hospital exception. Moreover, the Public Health Code is careful to treat hospitals, nursing homes, and the Michigan Veterans’ Facility separately, recognizing their separate statutory identities. Thus, when the Legislature enacted 1986 PA 175, removing governmental immunity from hospitals and from county medical care facilities, it did not remove the facility’s governmental immunity.because it failed to identify the facility when it excluded these other public institutions from the statute’s general protection.

B

Also, the facility and Michigan Department of Public Health presented the sworn affidavit of Walter Wheeler, Chief of the Bureau of Health Facilities of the Department of Public Health. He noted the distinction between a nursing home and a hospital under the Public Health Code and explained why the Department of Public Health did not consider the facility a hospital. Because the Department of Public Health is responsible for the licensure and certification of health facilities under the Public Health Code, MCL 333.20131(1); MSA 14.15(20131)(1), this Court gives great deference to the *159construction it places on the code as represented by Wheeler’s testimony. Bruehan v Plymouth-Canton Community Schools, 425 Mich 278, 282-283; 389 NW2d 85 (1986).

Wheeler swore that, under the definition of “hospital” in the Public Health Code, the Department of Public Health did not consider the Michigan Veterans’ Facility a hospital because it did not provide the requisite degree of daily supervision:

By definition, a hospital is limited to patients with conditions requiring the “daily direction or supervision of a physician.” The Department of Public Health Bureau of Health Facilities considers this high degree of physician supervision to be indicated where a patient’s chart reflects daily physician orders, daily physician’s progress notes, or nursing notes stating that a patient has been seen by a physician on a daily basis. The Michigan Veterans’ Facility does not provide these services. [Emphasis added.]

Dr. Wheeler explained that the facility does provide nursing care consistent with the Public Health Code’s definition, MCL 333.21715; MSA 14.15(21715), but is exempt from licensure as a nursing home, MCL 333.21711(3); MSA 14.15(21711)(3).8 The facility is not licensed to provide services as a hospital, and Wheeler swore that it would not qualify as a hospital if it sought licensure because it does not have an *160organized medical staff, MCL 333.21513; MSA 14.15(21513).

In requiring that “a patient’s chart reflect[ ] daily physician orders, daily physician progress notes, or nursing notes stating that a patient has been seen by a physician on a daily basis,” Dr. Wheeler confirms my understanding of what constitutes “daily” physician supervision or direction under the public hospital exception. I think that if this Court concludes that the term “daily” creates an ambiguity in the public hospital exception’s definition, it should rely on the sworn statement of an administrator who implements the Public Health Code from which the definition of “hospital” is taken, rather than relying on its own independent knowledge of this area by speculating on what it “would find . . . surprising” in a rehabilitation hospital or by referring to what “common experience” indicates occurs in a general acute care hospital. See ante, p 137, n 9.9 Under Dr. Wheeler’s description of what constitutes daily physician supervision or direction, there can be no dispute that the facility does not offer this kind of service.

CONCLUSION

I do not believe that the Michigan Veterans’ Facility is a “hospital” under the definition provided in the public hospital. exception of the governmental immunity statute. The facility does not provide active treatment of conditions requiring daily physician direction or super*161vision. I would affirm the decision of the Court of Appeals.

Brickley, C.J., and Weaver, J., concurred with Riley, J.

MCL 691.1407(4)(b); MSA 3.996(107)(4)(b).

I address the majority’s reference to a policy requiring that an order be renewed daily in part 11(C).

The facility’s “Member Guide Book,” pp 5-6, explained that the Joseph W. Mann Building provides “skilled nursing care for 226 residents,” the McLeish Building contains 343 beds with “skilled and basic nursing care,” and the Rankin Building has 140 “domiciliary beds” and fifty-four “basic nursing care beds” for members who “demonstrate a higher degree of self-care ability . . .

The brochure provided this list of the services that the facility offers:

SERVICES PROVIDED

Levels of Care:

Skilled Nursing Care — serves the individual with severe disabilities requiring continuous nursing care and supervision.

Basic Nursing Care — serves the individual with moderate disabilities.

Domiciliary Unit — serves the individual who needs very little nursing care, but has some limitations which require a structured environment.

Following a medical examination and comprehensive evaluation, the physician and professional staff of MVF are responsible for determining the level of care a veteran will require.

Services:

The Facility offers full time physician coverage as well as the following services:

• Pharmacy

• Respiratory Therapy

• Physical Therapy

• Occupational Therapy

• Rehabilitation (inpatient)

• Psychiatric aftercare

• Social work department

• Speech Therapy

• Routine Dental Examination

• Laundry

*152• Auxiliary

• Volunteer Services

• Pastoral care

• Laboratory services

• Vocational/disability services

• Recreation therapy

• EKG

• INH Therapy

• Special Clinics in Surgery, Genital/Urinary, Orthopedics, Colo-Rectal disease

Additional services available on a fee-for-service basis:

• Podiatry

• Dental Services (partial fee)

• Vision Services (partial fee)

• Barber

• Beautician

Several of these orders did not involve medication, but instead ordered the use of safety equipment or authorized the staff to place Tryc in the “quiet room” when he was belligerent.

MCL 333.20106(5); MSA 14.15(20106)(5) of the Public Health Code provides in pertinent part:

“Hospital” means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician.

The Public Health Code further states that “[t]he term does not include a hospital licensed or operated by the department of mental health.” The governmental immunity statute definition instead states, “[t]he term does not include a hospital owned or operated by the department of mental health or a hospital operated by the department of corrections.” MCL 691.1407(4)(b); MSA 3.996(107)(4)(b).

See n 6.

Section 21711(3) provides:

A person shall not purport to provide formal or informal nursing care services of the kind normally provided in a nursing home without obtaining a license as provided in this article. This subsection does not apply to a hospital or a facility created by Act No. 152 of the Public Acts of 1885, as amended, being sections 36.1 to 36.12 [Michigan Veterans’ Facility] of the Michigan Compiled Laws.

I also have reservations about the majority’s speculation about what is happening “in today’s health care world.” See ante, p 137, n 8. There is nothing in the record to support its conclusion that hospitals are releasing patients who require daily physician direction or supervision to nursing homes.