*1 Mercy Hosp. v. St. 1971] Kambas through relief unobtainable right substantive a and corpus that, of habeas writ of a issuance other or, relief declaratory he needs therefore, e.6 appropriat relief is reasons, declaratory judgment grant “every final shall 518.3: See GCR entitled, in is rendered is party whose favor it which the relief to pleadings.” in his party has demanded such relief if the even
K A MBAS HOSPITAL MERCY ST. JOSEPH’S DETROIT, MICHIGAN OF op
Opinion
the Court
op
op
Scope
Negligence Malpractice—Statutes
Limitation —
1.
—
Coverage Legislative
—
Intent.
in
statute of limitations
intent
in
professions
all
actions is to treat
state-licensed
600.5838.)
600.2912,
(MCLA
same manner
§§
Negligence Malpractice—Nurses—Registered
2.
Nurses.
—
registered
may
profession
A
is a
a
and
be held
nurse
member of
profession;
if
liable
she deviates from the standards of her
registered
registered
professional,
since
nurse
liable
two-year malpractice
nurse is
entitled to
benefits
(MCLA 338.1152, 600.2912,600.5838).
statute of limitations
§§
[1]
[2,
[7]
[3]
[8]
Resort
4-6]
50 Am
51 Am Jur
ports,
51 Am Jur
statute.
Appeal
from
Conlin,
Washtenaw,
John W.
J.
Submitted
Division March
at
9, 1971,
Detroit.
(Docket No.
Decided
Leave
10091.)
April 26, 1971.
to appeal granted,
1971] Complaint Kambas Louis damages injuries Hospital for of Detroit drugs reg- negligent administration from hospital. employed by Accel- nurses istered appeals. judgment Plaintiff defendant. erated Affirmed. (by Donnelly
Ripple W. Had- C. Chambers, P. plaintiff. den), for n <&
Keyes, defendant. Hurbis, Creal McGregor J.,P. Before: Danhof, JJ. January plaintiff 17, 1969, On Danhof, *3 seeking dam- to recover for this action
commenced April allegedly ages inflicted were which judgment for an accelerated moved The defendant of the two- on the basis under GCR 1963, 116.1(5) year governing malpractice ac- of limitations (Stat Ann 1962 Rev 27 A- tions, MOLA 600.5805(3) [3]). .5805 plaintiff
The had suffered a heart attack and had hospital been admitted to the defendant treat- ment. Part of the treatment consisted istering anticoagulants. admin- plaintiff that contends reg- drugs by negligently these were administered employed by istered nurses who were defendant. plaintiff appeal First, issues. raises two On apply to statute of limitations does the registered charging negligence an action bar performance Second, her duties? nurse in the against registered directly nurse even if an action does limitations, statute of is barred against employer her bar an action hos- that statute pital yearsT commenced within three We conclude questions both of these must be answered in affirmative. (Stat 27A.2912) Ann 1962Rev
MCLA 600.2912 provides: may
“A civil action for he maintained person professing holding himself profession. out to he a member a state licensed applicable The rules of the common law to actions profession, of a members state licensed malpractice, applicable against any person are who holds himself out to be a member of state licensed profession.”
The committee comment this statute reads: only pertained physicians “The section source broadening surgeons. Note that this a new section does not create cause of action. Mem- professions bers state licensed are liable for mal- practice persons. law, at common as are unlicensed per- section does hold What this is to the unlicensed son to the standard of care to which a member of profession the state licensed would be held, instead layman, of to the standard of care of a to which persons present.” unlicensed at are held (Stat § 27A.5838) MCLA 600.5838 Ann 1962Rev provides:
“A claim based on the of who is, or holds himself out be, a member of a profession state licensed accrues at time *4 treating serving discontinues or otherwise plaintiff professional pseudo-professional in a or capacity as to the matters out of which the claim arose.” certainly Legis-
These statutes indicate that the professions lature has intended to treat all in the Hosp. Kambasv. St.. 1971] is a profession, nursing If registered manner. same Act, Revised Judicature is used term as that he ap- must plied. duties of reg- has defined the 338.1152 Supp § MCLA 1971 Cum
istered nurse, Ann 1969 Rev § 14.694[2]: (Stat means the nursing’ of professional ‘Practice “(c) for compensation: performance specialized substantial requiring act (i) any Of education formal on skill founded and judgment application and knowledge provides which physical biological, on nursing based principles treatment counsel, care, sciences, in the and social for the or infirm, or injured the ill, observation of illness prevention or the the health maintenance of of others. or teaching supervising, directing
(ii) Of the of dele- out carrying less skilled in the personnel activities.” gated nursing (3d the follow- pp 164, 165, In Torts Prosser, ed), is found: ing statement and those who un- general, “Professional men in are re- skill, work calling special dertake to exercise reasonable care what quired only minimum of but also to a standard they do, possess special of the decided knowledge ability. and Most but surgeons, cases have dealt with physicians the cists, psychiatrists, is undoubtedly dentists, pharma- same true of and en-
attorneys, architects gineers, accountants, title, many abstractors of other professions and even skilled trades.” it is a registered of this clear that of all light
In be held may of a profession is member nurse of that pro- if from standards liable she deviates hold that indeed be anomalous to fession. It would *5 by Levin, J. Dissent of the malpractice she is not entitled to the benefit of limitations. statute
In second plaintiff’s contention, with the dealing that the trial court held the barred an action the against hospital limitations from 34 Am quoted Jur, the Limitation following 386 : Actions, § “ ‘A agent statute that bars a claim equally protects those whose behalf he acted as agent, where there no of equity are circumstances to prevent operation of the statute in fa- their ” vor.’ agree
We with the trial court. The plaintiff con- tends that the hospital is liable vicariously for the nurses’ malpractice. He does not contend that hospital guilty negligence of its own. On these facts, the malpractice statute of limitations applies to an action against The stat- hospital. ute cannot be avoided merely by defend- changing ants.
Affirmed, costs to the defendant. J., concurred. McGregor, I I (dissenting). dissent because am J. Levin, convinced the Revised history statute of limita- Judicature Act for malpractice applies only tions actions to actions charging by physicians, surgeons, dentists, and that tort three-year period claiming actions action generally applies this hos- negligence employed by nurses the defendant pital plaintiff’s injuries. caused
Under the Judicature Act of 19151 the statute of for actions charging “malpractice PA No. 314. Hosp. Kambas v. 1971] by or dentists” was two physicians, surgeons years. The time for bringing
other persons was governed general three- year limitation period applicable to actions to re *6 cover damages for injuries to or persons property.2 for tort actions are now periods
The limitation 5805 of the Revised Judicature Act. embodied damages It is there that actions to recover provided person for to or shall be com injuries property menced within two if the action years charges “mal practice” and within three years “for all other ac tions to recover for to damages injuries persons 3 property”. “Malpractice” is not defined in RJA 2 “2. damages injuries Actions to recover property for to or trespass upon and actions for brought years land shall be within 3 accrue, from the time said actions afterwards;” and not “3. Actions sheriffs for neglect the misconduct or of themselves, deputies, or battery, their for assault and for false im- prisonment, for prosecution, malicious physicians, for of surgeons dentists, or all recovery any penalty actions for the of or any penal forfeiture brought on people in the name of the state, brought this charge any surety actions costs, recognizance or on or given bond appeal any on from court this state, brought shall be years within from the time the cause accrues, for action and not (Stat afterwards.” CL 609.13 27.605). Ann § person may bring “No or maintain action to recover dam ages injuries persons property unless, after the claim first commences section. through accrued to himself or to someone claims, whom he he periods the action within prescribed by of time this “(1) period The years of limitations is 2 charging for actions assault, battery, imprisonment. and false “(2) period The years limitations is 2 charging for actions prosecution. malicious “(3) period The years limitations is 2 charging for actions malpractice. “(4) period The 2 years limitations is for actions charging sheriffs their neglect by misconduct or of office themselves or deputies. “(5) period years The expiration limitations is after the year for which a was constable elected for actions on based his negligence or misconduct as constable. “(6) period The year of limitations is 1 for actions charging libel or slander. drafted Act was Revised Judicature
The Procedural Revision Michigan on Committee Joint of the Supreme resolutions pursuant appointed Bar of Michi- and the State Court, Legislature, was final transmitted report committee’s The gan. note for the committee 15,1959; on November as follows: comments
“Section [5805] is a compilation of the limitations time Existing periods remedies. tort general have been used.” (Emphasis supplied.) the Judicature time “existing period” (under against persons 1915) Act of or dentists was surgeons, other than physicians, ascribe to the three should therefore years. We a mean- as used in RJA § word “malpractice,” *7 of the drafts- representation consistent with the ing and the Legislature, men to the Supreme Court, in as used profession, namely, “malpractice,” against 5805, charging § means actions physicians, or dentists. surgeons,
In this that none of connection, noteworthy it is 5805 were the limitation set out in RJA periods § in the source changed from the contained periods sections.5 out committee note
My colleagues point another section of the Revised Judi- accompanying cature Act, 2912,6 states that “the source section § “(7) period years The of limitations is 3 for all other actions damages injuries persons to recover MCLA property.” to 27A.5805). (Stat 600.5805 Ann 1962 Rev § § 4 Reprinted (Stat as an to MCLA 600.5805 Ann annotation § 27A.5805). Rev § (Stat 5.73), The 1948, source sections CL Ann are 41.81 § § concerning against constables, (Stat actions and CL 609.13 § 27.605) concerning Ann other in RJA actions described § § (Stat 6 MCLA §27A.2912). 600.2912 Ann 1962 Rev § Hosp. 1971] Kambas v. physicians surgeons”.7 pertained only to phrase § in 2912of the “member of substitution RJA phrase profession” “physi- licensed for the a state surgeons” in indicates section, cians and its source to me that the draftsmen of the Revised Judicature scope they Act, when decided to broaden the judicature provision concerning malprac- act tice actions, manifested their to so in intent do language. holding clear RJA Moreover, “professional” imposters all to the standard care profession they purport of, to be member states a rule of doubt, law which the no courts, independently would reach of statute.8 “malpractice”, RJA 5805,which does not define ambiguous is period toas whether its limitational apply (a) charging
is to to all actions mal- practice against professional those —both required required to be state licensed and those not b,e (b) only against licensed alike or to actions professions required members of to be state licensed, (c), as in only the source section, to actions physician, surgeon, or dentist. By largest far number are And commenced doctors. this was even drafting more 1950’s, true the late when the way, the Revised was under than it Judicature Act today. generically, While failure of is, professional person adhere the standard section, (Stat 27.1379), CL The source Ann 620.29 *8 spoke person “professing holding physician of a or himself out to be a surgeon” or speaks “person professing while RJA 2912 of a or holding profession.” himself out to be a member of a state licensed Under RJA 2912 one who holds of a himself out to be a member profession state-licensed member of is held to the standard of care to which a profession the is held, not of care a the standard of layman. Hawkins, p See Commentary, 600.2912, Practice 33 MCLA § Mich by Levin, required person a who is a
conduct of member of or profession,9 to be member of his holds himself out the term also has a meaning, namely, a restricted negligence against physician action geon.10 a or sur- speaks a When a of ac- thought the first comes to mind is that tion, the speaker talking physi- is a lawsuit a about cian. a
When the enacted short first stat- ute of limitations pressly incorporated actions, ex- it meaning: that restricted “mal- practice physicians, surgeons of or dentists”. presumption is a that there been said
It has general the same mean- revision “have of a sections original ing notwithstand- section[s], and this as the phraseology”.11 ing in the there is alteration general pre- statutes the “In codification of sumption the codifiers did not intend obtains that changes phraseology change law; and mere of punctuation, or or the addition or omission of words, rearrangement parts or of or sections stat- portions formerly placing ute, or the what separate single sections, was a section in does operate change operation, meaning effect or changes statute unless the are such nature clearly unmistakably as to manifest change intent to former ex rel. State, law.” (1947), (27 Johnson, v. Broderick 75 ND 852). NW2d Dictionary (4th ed); See Dictionary Black's Law Ballentine’s Law (3d ed); Dictionary Language. English The Random House 10“Malpractice'' Dictionary is defined the Oxford Universal (3d ed) “improper culpable negligence patient treatment of a physician.'' 226, 230, (1928), Delahunt Finton Cf. Michigan Supreme
where the “Malpractice, Court its declared: ordinary sense, negligent performance physician or sur- geon upon of the duties devolved and incumbent him on account his patients.” contractual relations with his 11City of (1962), (115 v. Wharton NW2d 79 SD Redfield 329, 332). *9 1971] Kambas v. 137 Hosp.' by Levin, J. Dissent
“It is well settled that where statutes are revised change phraseology and consolidated a in does not import change a in law unless the intent of the legislature language to alter the law is evident or the palpably require of the new act is such as to a differ- (CA Thompson ent construction.” United States v. 1963), 2, 319 F2d 665, 669.12 only foregoing
Not does the rule of construction against imputing pur- militate pose to the a change meaning of the source section, but this case we have a clear statement they any change revisers that did intend mean- ing “Existing periods : time have been used”.
Many recognized courts have that revisers’ notes guides” are “authoritative intent.13 “malprac Where courts have been free to define tice” as used in a statute of limitations, because the legislature given they had not defined the have term, meaning. it a restricted The New York Court of Appeals held that its Civil Practice “in Act, so far prescribes as it a limitation in recover damages malpractice, refers to actions to re damages personal injuries resulting cover from physicians, surgeons, the misconduct of and others practicing profession similar to those enumerated” govern and, bringing therefore, did not time alleged negligence action to recover for public subsequent accountants.14In York cases New 12 Wilson Miller (1957), v 144 Austro- (128 894); Conn 212 A2d Hungarian Westphal Consul v. (1912), (139 120 300). Minn 122 NW 13 United Thompson, supra, States People v. p 669; similarly, see ex rel. Cohen v. Butler (1908), App 125 384, (109 Div 388 NYS 900, 903); Austro-Hungarian Westphal, supra, Consul fn p v. 127; Doll v. Stahl (1953), ND 843, (59 721, 726); 79 849 NW2d City Wharton, Pfingsten Pfing v. supra, p 564; fn Redfield v. sten (1916), 164 (159 Wis 921, 925). NW Banking Federal Company International Touche (1928), NY 517, (162 NE 507, 508). App by dentist15 or an action held that courts lawyer,16 nurse,17 not an action but governed by statute of limitations.18 Dept, 1929), (1st In Isenstein v. Malcomson Appellate (236 643), *10 641, Div 67 NYS 66, Department, New York, for the First Division holding malpractice arising out that an action governed by alleged negligence a nurse was not malpractice limitations, declared: statute of the malpractice is to be that conclude “We considered generally meaning, primary understood and as in its by intelligent reasonably ordinarily in- and the respect, according person, in this and, formed usage acceptance, it has continu- and such common ously improper import an treat- been intended to patient by physi- culpable neglect a a ment or surgeon.” cian or reasoning Supreme as did the Court,
The Ohio malprac- New York ruled that its courts, has also apply to an tice of limitations does negligence alleging Richardson action of a nurse. 880). (1964), (199 NE2d 878, v. Doe 176 372 370, Ohio “today, malpractice, Acknowledging term, that the negligence loosely is sometimes used to refer to any professional group,” reasoned that court training, responsibility of a nurse functions, sufficiently were different from those of a doctor or lawyer a to make extension of the short statute limitations Earlier to cover nurses unwarranted. held alleged 2d 801 (135 17 16 Siegel 1 5 In Budoff Wolff (23 NYS2d applicable (205 Rudman that he had NYS2d v. Jamaica NYS2d v. Kessler 717). Kranis (1968), to an v. Bancheri 584), 152). operated Hospital action (2d Dept 29 (2d Dept. on a customer. App (2d Dept. NY Div 2d 477 1954), statute of NY, pharmacist NY, 1960), 1940), 284 (288 App where it NYS2d Div 1049 App 831). was was Div Div 1971] Kambas v. Hosp. by Levin, surveyor pro- is not had ruled that court Ohio attorneys20 that statute,19 but the short tected covered. dentists21 are so Hampshire Supreme Court reasoned The New ‘malpractice’ had been used this “the word since against physicians and sur- describe actions state to practicing geons Christian or dentists or those Sci- a short statute when the enacted ence,” intended actions, it of limitations meaning” an action with the result “limited malprac- hospital was not an “action Hospital (1964), Community Elliot tice”. Blastos v. (200 856).22 NH A2d by express legislation have extended Some states coverage of their short statutes hospitals include three limitations to states express within but definition,23 include nurses majority gone case, far in this no state has as the *11 by judicial by legislation whether or decree, healing professions included not connected with the appears that arts or the with the result it law, that Michigan provides protection the alone the of now professionals short statute to such state licensed NE2d various states into New other appellee’s ed the all actions. (New York, Ohio, (b) 22By 20 Galloway 21 19 personal In Cox Wishnek statutes which use relevant Hampshire states, special making amendment v. brief which Cartwright actions are now I have relied on the v. cases which v. Hood treatment the Rev Stat Gulla groups: Nebraska in in foregoing do categorized 1969 (1953), Nebraska (Ohio the word (1941), of Ann, the New provide malpractice (a) governed by and North Court of Common 96 Ohio statement 69 statutes which define appendix “malpractice” or North Ohio Supp, Hampshire special period statutes App actions with the result Dakota; the App regarding attached to the defendant 508:4. 245 Dakota); longer six-year 278 of limitations but do not define legislature (121 Pleas, 1953), we (43 the statutes “malpractice”; could not find NE2d (e) NE2d eliminat statutes 673). statute. of the 631). 114 of it Mich by Levin, surveyors, landscape as embalmers, foresters, ar chitects, taxidermists.24 decision the various draftsmen the Re vised Judicature Act to make “the last treatment applicable professions,25 rule” to all state-licensed “existing periods” but to retain time so that short statute for actions is applicable only against physicians, to actions sur geons, symmetry. and dentists lack does, indeed, willing I symmetry am, however, to sacrifice implementation expressed intent of the drafts change § “existing men of RJA 5805—no time periods” which, for want of evidence that Legislature had some other —
intent,
should be
ascribed to the
itself.
24In
physicians, surgeons, dentists,
addition to
lawyers,
nurses and
required
state licenses are
following “professions”,
for the
among
(MCLA
others:
foresters
338.722
Ann 1967 Rev
§
[Stat
§13-
.215(2)]),
(MCLA
embalmers
338.865
Ann 1969 Rev
§
[Stat
§
14.509(5)]),
landscape
(MCLA
architects
338.1202
Ann
§
[Stat
Supp
1971 Cum
18.84(102)]),
community planners (MCLA
§
338.1354
Supp
Ann
§18.170(4)]).
1971 Cum
[Stat
many
operative
In
cases the
avoided
majority’s
effect of the
construc-
a
by
can
finding
tion
be
injury
by
profes-
caused
person employed by
sional
plaintiff
expecta-
to a “financial
tion or economic benefit”
rather
than to
specific
his
property
Associates,
Schenburn
Lehner
(1970)
Inc.
App 534,
Mich
where
bringing
we held that the time for
an action
charging negligence
governed
surveyor employed by
of a
plaintiff
was
two-year (malpractice)
neither
three-year (torts
nor
generally) periods
six-year period applicable
but
the.
to actions for
breach
contract.
(MCLA
See RJA 5838
600.5838
Ann 1962 Rev
[Stat
27A.5838]').
provision
The committee note indicates that this is a new
based on
the rule stated DeSaan
(1932)
v. Winter
should have discovered the act.