345 N.W.2d 207 | Mich. Ct. App. | 1983
ADAMS
v.
NORTHVILLE STATE HOSPITAL
Michigan Court of Appeals.
Meklir, Schreier, Nolish & Friedman, P.C. (by Sherwin Schreier), for plaintiff.
*584 Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and George L. McCargar and Craig Atchinson, Assistants Attorney General, for defendants Richards, Hare, Papania, Ferrari, Evans, and Mueller.
Sullivan, Ward & Bone, P.C. (by Robert E. Sullivan), for defendants Tombo, Pomodoro, Akman, and Sanders.
Schureman, Frakes, Glass & Wulfmeier (by Jeffrey E. Clark), for defendant Gockora.
Before: D.F. WALSH, P.J., and BEASLEY and D.L. SULLIVAN,[*] JJ.
PER CURIAM.
On June 1, 1982, the trial court granted defendants' motion for summary judgment. Plaintiff appeals as of right.
Plaintiff alleged that on April 20, 1976, after being diagnosed as an acute schizophrenic, Anthony Adams was transferred from the Detroit General Hospital to Northville State Hospital. Twelve days later he died. Plaintiff alleges that the death was from defendants' failure to recognize that Adams was acutely dehydrated and exacerbated the situation by continually injecting drugs into his system. The trial court granted the summary judgment ruling that all defendants are protected by governmental immunity.
The trial court correctly granted summary judgment as to defendant Northville State Hospital. Perry v Kalamazoo State Hospital, 404 Mich. 205; 273 NW2d 421 (1978), app dis 444 U.S. 804; 100 S. Ct. 24; 62 L. Ed. 2d 17 (1979); Smith v Michigan, 122 Mich. App. 340; 333 NW2d 50 (1983); Siener v *585 Michigan, 117 Mich. App. 179; 323 NW2d 642 (1982), lv gtd 417 Mich. 934 (1983).
We are also persuaded that the trial court properly granted summary judgment for the other defendants as well. In Converse v Isabella County, 126 Mich. App. 331, 341; 336 NW2d 918 (1983), this Court noted:
"Although it is clear from Supreme Court opinions * * * that government employees can be immune from tort actions, it remains unclear under what standard or test immunity is found to exist."
At present, this Court has split on whether to use the discretionary/ministerial test or the scope-of-employment test. Cf. Layton v Quinn, 120 Mich. App. 708; 328 NW2d 95 (1982), with Lewis v Beecher School System, 118 Mich. App. 105; 324 NW2d 779 (1982). We conclude that the trial court correctly found defendants' actions to fall within governmental immunity under either test. Diagnosing a patient and giving him drugs is a discretionary activity. If the activity is discretionary, the action is covered by governmental immunity. Fuhrmann v Hattaway, 109 Mich. App. 429; 311 NW2d 379 (1981), lv den 414 Mich. 858 (1982). Defendants' actions also fit within the scope-of-employment test as commonly used by this Court. Mason v Rosen, 124 Mich. App. 204; 333 NW2d 513 (1983).[1]
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] We realize that Davis v Lhim, 124 Mich. App. 291, 296; 335 NW2d 481 (1983), substantially narrowed this test: "A negligent act falls within the scope of the actor's employment only if the duty he breached is imposed on him because he is a public employee." However, without clearer guidance from the Supreme Court, we decline to follow this radical change from the present law. Such a test comes dangerously close to judicially eliminating the statutorily imposed immunity.
