MAIDEN v ROZWOOD; RENO v CHUNG
Docket Nos. 107936, 110035
Supreme Court of Michigan
July 30, 1999
Rehearing denied in Maiden, post, 1205.
461 Mich. 109
Argued January 22, 1999 (Calendar Nos. 14-15).
Kenneth Reno brought an action in the Wayne Circuit Court against Yung A. Chung, M.D., a Wayne County assistant medical examiner, and others, alleging gross negligence in the performance of autopsies on his wife and daughter, which eventually led to his arrest and being charged with their murders. Experts consulted by the prosecutor in preparation for trial discredited Dr. Chung‘s conclusions, and the charges were dismissed. Other persons later confessed to and were convicted of the crimes. The court, Diane M. Hathaway, J., granted summary disposition for Dr. Chung under
In an opinion by Justice CORRIGAN, joined by Chief Justice WEAVER, and Justices TAYLOR and YOUNG, the Supreme Court held:
- Government officers and employees acting within the scope of their authority generally are immune from tort liability, provided that their actions are not grossly negligent. Gross negligence is defined by
MCL 691.1407(2)(c) ;MSA 3.996(107)(2)(c) as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Evidence of ordinary negligence does not create a material question of fact concerning gross negligence. The content or substance of the evidence proffered must be admissible in evidence. - In Maiden, the plaintiff‘s proofs in opposition to the defendants’ motion for summary disposition failed to raise a material question that the defendant employees’ conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury would result. The plaintiff failed to meet her burden of coming forward with specific facts to support her claim that the defendants’ conduct was grossly negligent. On the basis of the record, reasonable minds could not differ. Accordingly, the trial court properly granted summary disposition for the defendants. In Reno, the plaintiff‘s proofs in opposition to the motion for summary disposition raised a material question of fact regarding the statutory standard for gross negligence. However, the defendant owed no duty to the plaintiff under the public duty doctrine or traditional duty principles. The gross negligence claim is unenforceable as a matter of law, and summary disposition was properly granted under
MCR 2.116(C)(8) . - A county medical examiner must investigate the cause of death in all cases of persons who meet a violent death. Further, a medical examiner may be required to testify in behalf of the state in any matter arising as the result of any investigation required under
MCL 52.212 ;MSA 5.953(12) , and must testify in behalf of the state. Nothing in the statutory scheme has created duties to a criminal defendant; instead, the duty is owed to the state. While an injury to a wrongly accused criminal defendant from erroneous findings is foreseeable, the express language of the statute requiring medical examiners to testify on behalf of the state militates against imposing any duty on defendant Chung to the plaintiff as a consequence of her incompetent medical findings and testimony. - Defendant Chung‘s role as the state‘s factual and expert witness at the plaintiff‘s preliminary examination was plainly adver-
sarial to the plaintiff‘s interests. The duty imposed on a witness generally is owed to the court, not the adverse party. A breach of that duty does not give rise to a cause of action in tort by the adverse party. Further, witnesses who testify during the course of judicial proceedings enjoy quasi-judicial immunity. Statements made during the course of judicial proceedings are absolutely privileged, provided they are relevant, material, or pertinent to the issue being tried. Falsity or malice on the part of the witness does not abrogate the privilege. The privilege should be liberally construed so that participants in judicial proceedings are free to express themselves without fear of retaliation. The autopsy, investigating the circumstances surrounding the death in question, was performed under statutory mandate and was a necessary predicate to the defendant‘s statutorily compelled testimony.
Maiden, reversed.
Reno, affirmed.
Justice KELLY, joined by Justices BRICKLEY and CAVANAGH, dissenting, stated that in Maiden the plaintiff has presented sufficient evidence of defendants’ gross negligence to survive a motion for summary disposition. In Reno, the defendant owed a duty to the plaintiff that supported a cause of action for gross negligence under the governmental immunity statute.
In Maiden, in finding a lack of gross negligence on the part of the defendants, the majority erroneously concludes that the statement by defendant Myles was inadmissible hearsay and, therefore, may not be considered by the Supreme Court. In addition, it needlessly engages in a discussion concerning evidence admissibility under
Whether a duty exists in a particular case is a question of law to be decided by the court. In this case, the factors weigh in favor of finding an enforceable duty. The injury to the plaintiff was actually and directly foreseeable by the defendant. The defendant was well aware that her opinion would play a major part in the decision to charge and incarcerate the plaintiff. The performance of the defendant‘s duties clearly affected the plaintiff in a manner different from the general public. In addition, the burden on the defendant to perform her duties without gross negligence was minimal, and the risk presented by her negligence was serious. The defendant not only negligently failed to correctly perform the autopsies, she refused to cooperate with the prosecutor when he attempted to substantiate her findings. She forced the prosecutor to obtain a court order to examine forensic evidence, causing greater delay in the innocent plaintiff‘s release from incarceration.
Law Offices of David J. Cooper, P.C. (by David J. Cooper), and Bendure & Thomas (by Mark R. Bendure) for plaintiff-appellee Maiden.
Donald M. Fulkerson for plaintiff-appellant Reno.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Santiago Rios, Jessica E. LePine, and Michael C. McDaniel, Assistant Attorneys General, for defendants-appellants in Maiden.
OPINION OF THE COURT
CORRIGAN, J. In these consolidated cases, we granted leave to decide the quantum of proof required to survive a motion for summary disposition in gross negligence actions involving government employees under
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
A. MAIDEN V ROZWOOD
Plaintiff‘s decedent, Leith Maiden, was a resident at the Southgate Regional Center, a state mental health facility. He had been diagnosed as a paranoid schizophrenic with adjustment disorder and disturbances of conduct and mood. On June 9, 1994, Maiden, who
En route to the residence, Maiden announced that he was not returning to the residence and began “wandering off.” Troy enlisted the help of defendants Betty Jo Szabo, a licensed practical nurse, and Henry Rozwood, another resident care aide, to escort Maiden to his room. When Maiden entered the building, he ran to the dining room where he immediately caused another disturbance. He yelled, swore, and knocked over furniture in the proximity of other residents. Other staff and residents present in the dining room scurried away from the flying tables and chairs. Defendants Troy, Szabo, and Rozwood attempted to calm Maiden verbally without success.
Maiden struck defendant Troy in the head, knocking him to the floor. Troy lost his glasses and was momentarily dazed. Maiden also attempted to strike Rozwood, and during the struggle they both fell to the floor. Rozwood then sat on Maiden‘s buttocks in an effort to restrain him, but he was bucked off to Maiden‘s left side. Rozwood then leaned on Maiden‘s left shoulder and held his left arm as he lay face down on the floor. After Maiden thrashed about and attempted to bite defendant Szabo, Rozwood held the back of Maiden‘s head to prevent him from biting anyone. Troy held Maiden‘s left arm. Defendant Karl Myles, a fire and safety officer who also had been called to assist, straddled Maiden‘s legs and told him to calm down.
Defendants Rozwood and Szabo estimated that the entire incident lasted two to three minutes, while another staff member estimated that Maiden was held down five to ten minutes. The medical examiner opined that Maiden‘s death was caused by “positional and/or compression asphyxia” and the “manner of death was an accident.”
Plaintiff filed a wrongful death suit, naming as defendants the regional mental health facility, the Michigan Department of Community Health, and the four employees who participated in the attempt to restrain Maiden. The circuit court dismissed the complaint against the mental health facility and the Department of Community Health on the basis of governmental immunity.
The complaint alleged that the individual defendants’ conduct was grossly negligent within the meaning of the statute and thus not immune from liability.
Defendants moved for summary disposition under
B. RENO V CHUNG
On May 10, 1991, plaintiff arrived home and discovered that his wife, Carlynne, and daughter, Robin, had been brutally stabbed. Plaintiff‘s wife was already dead, but Robin was still alive. Her throat had been cut. She identified an acquaintance named Tommy Collins as their assailant just before she died. Plaintiff subsequently related his daughter‘s dying words to the police.
Both Collins and plaintiff were suspects in the double murder. The police investigation quickly focused on plaintiff after defendant, a Wayne County assistant medical examiner, performed autopsies on the decedents and opined that the stab wounds to Robin‘s neck made her unable to speak. On the basis of this information, plaintiff was arrested and charged with murder. He was bound over after a preliminary examination at which defendant testified that plaintiff‘s daughter could not possibly have implicated Tommy Collins, given the nature of the injuries to her throat.
In preparation for plaintiff‘s murder trial, the prosecutor consulted a pathologist, Dr. Laurence Simson,
Rather than corroborate defendant‘s conclusions, both experts stated that defendant‘s findings and conclusions were completely wrong. Both experts found that defendant‘s conclusions regarding the victim‘s ability to speak had no anatomical or physiological basis. Both experts unequivocally opined that the victim‘s neck injuries would not have prevented her from speaking.
Because defendant‘s conclusions had been discredited, the prosecutor dismissed the charges against plaintiff.2 Ten months later, plaintiff sued defendant and other parties, alleging that defendant had been grossly negligent. Defendant moved for summary disposition under
Plaintiff appealed. In a divided opinion, the Court of Appeals affirmed the order granting summary disposition. The majority found that defendant owed no duty to plaintiff under the public duty doctrine and that no special relationship existed between plaintiff
II. GOVERNING LEGAL STANDARDS
This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law. In making this determination, the Court reviews the entire record to determine whether defendant was entitled to summary disposition. Groncki v Detroit Edison Co, 453 Mich 644, 649; 557 NW2d 289 (1996) (opinion of BRICKLEY, C.J.).
In Maiden, the trial court granted summary disposition under
A. LEGAL STANDARD UNDER MCR 2.116(C)(7)
A party may support a motion under
B. LEGAL STANDARD UNDER MCR 2.116(C)(8)
A motion under
C. LEGAL STANDARD UNDER MCR 2.116(C)(10)
A motion under
The plaintiff relies on Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973), for the proposition that a motion for summary disposition under
A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the
adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.
A litigant‘s mere pledge to establish an issue of fact at trial cannot survive summary disposition under
Today we clarify the correct legal standard under
III. GROSS NEGLIGENCE
Generally, government officers and employees acting within the scope of their authority are immune
In Jackson v Saginaw Co, 458 Mich 141; 580 NW2d 870 (1998), the plaintiff sued the Saginaw County jail physician, claiming that the doctor was grossly negligent in failing to diagnose the plaintiff‘s throat cancer. This Court upheld the order granting summary disposition for the defendant county. Agreeing with the trial court that reasonable minds could not differ in concluding that the defendant‘s conduct was not grossly negligent, this Court stated:
As we have noted, it appears that the deposition testimony offered to the trial court fails to raise a question whether the defendant even violated the standard of care applicable to him and therefore would be guilty of negligence. There is, however, clearly no testimony at all offered to support a notion that his conduct would be so reckless as to demonstrate a substantial lack of concern for whether an injury results. [Id. at 150-151.]
The logical import of Jackson, consistent with the statutory definition of gross negligence, is that evidence of ordinary negligence does not create a ma-
In addition to requiring that a plaintiff show reckless conduct, the content or substance of the evidence proffered must be admissible in evidence. In Lytle v Malady, supra, this Court clarified the evidentiary standard required to survive summary disposition in age and gender discrimination claims. The Lytle Court stated:
[W]e find that, in the context of summary disposition, a plaintiff must prove discrimination with admissible evidence, either direct or circumstantial, sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action taken by the employer toward the plaintiff. [Id. at 176 (emphasis added).]
No principle requires a higher evidentiary standard to support a material question of fact for age and gender discrimination claims and a lower standard in support of gross negligence claims. Therefore, only evidence whose content or substance is admissible can establish the existence of gross negligence as statutorily defined.5 See also Pauley v Hall, 124 Mich App 255;
A. MAIDEN V ROZWOOD
In opposing defendant‘s motion for summary disposition, plaintiff presented excerpts of the deposition of witnesses, portions of a Michigan State Police Supplemental Report dated June 23, 1994, portions of an incident report prepared by the employees, and the medical examiner‘s report.
The excerpts of the supplemental police report are inadmissible hearsay when offered against codefendants Troy and Rozwood.7 The police report itself is plausibly admissible under the business record exception, MRE 803(6). The statement in the police report
The information contained in the remaining documents, viewed in a light most favorable to the plaintiff, reveals that a staff member may have lain across the decedent‘s upper body using an unapproved restraint technique, a staff member momentarily held the back of decedent‘s head to prevent biting, and that the incident may have lasted as long as five to
Plaintiff essentially argues that because Maiden died of compressional asphyxia after being restrained, gross negligence is presumed. Plaintiff thus employs the doctrine of res ipsa loquitur to establish the existence of gross negligence.10 “The major purpose of the doctrine of res ipsa loquitur is to create at least an inference of negligence when the plaintiff is unable to prove the actual occurrence of a negligent act.” Jones v Porretta, 428 Mich 132, 150; 405 NW2d 863 (1987). While the doctrine of res ipsa loquitur may assist in establishing ordinary negligence, the doctrine is not available where the requisite standard of conduct is gross negligence or wilful and wanton misconduct. See Prosser & Keeton, Torts (5th ed), § 39, p 255; 23 ALR3d 1083, § 2, pp 1085-1086; 2 Restatement Torts, 2d, § 328D, comment on clause (c) of subsection (1), pp 163-164; Burghardt v Olson, 223 Or 155; 354 P2d 871 (1960); Laster v Tatum, 206 Va 804; 146 SE2d 231 (1966).
B. RENO V CHUNG
Plaintiff submitted affidavits from otolaryngologist Robert Mathog, M.D., and pathologist Laurence Simson, M.D., the Ingham County Medical Examiner, the experts whom the prosecutor had consulted to prepare for plaintiff‘s criminal trial, in opposition to defendant‘s motion for summary disposition.
Dr. Simson‘s affidavit stated in part:
Dr. Chung‘s testimony that Robin Reno could not have spoken to Kenneth Reno before she died is incorrect. The basis for her testimony ... is erroneous and is not consistent with the laryngeal injuries recorded by Dr. Chung. There is no anatomic or physiologic basis for her assertion that Robin Reno would have been unable to speak .... Dr. Chung‘s assertion ... reflect[s] a misunderstanding on the nature of Robin Reno‘s laryngeal injuries and/or the mechanisms of laryngeal function in the generation of speech. Since Robin Reno‘s ability or inability to speak was such an important issue in the case ..., it would have been prudent for the medical examiner to have sought consultation if she did not have confidence in her own ability to interpret such laryngeal injuries.
Dr. Chung‘s understanding of the anatomy and physiology of the larynx is flawed and full of misconceptions.
Dr. Chung‘s testimony that Robin Reno could not have spoken to Kenneth Reno before she died is absolutely wrong.
Her alleged basis for that statement as contained in her testimony . . . is erroneous and has no medical basis.
There is no physiological basis for her assertions. She is anatomically incorrect. She has failed to make a proper examination or gain essential knowledge of the physiology of that area of the body to make findings or testify in regard to same.
Dr. Chung‘s failure to properly perform the autopsy with the requisite knowledge of the anatomy, physiology and function of the effected area and then testifying to the impossibility of speech based on erroneous assertions regarding the nature of the wounds and their effect on the deceased constituted a breach of her duty to perform her duties as a medical examiner as a reasonably prudent medical examiner would have, and was gross negligence defined as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury was likely to result, resulting in the imprisonment of Mr. Reno based on her testimony.
Defendant Chung failed to possess the requisite knowledge and skill to testify as to the effect of the wounds in the throat area. A reasonably prudent medical examiner would not have testified as she did nor made the baseless findings that she did.
The affidavits of both these expert witnesses reveal more than a mere difference of medical opinion. Rather, both emphatically indicate that defendant had no medical basis for her findings and conclusions. Both expert witnesses essentially opine that defend
We also note defendant‘s refusal to cooperate with the prosecutor after he consulted the other expert witnesses. Defendant made her records and specimens available to the prosecutor for the experts’ review only after a court order compelled her to do so. A reasonable inference can be drawn that defendant refused to comply because she knew her opinion was fallacious and that her incompetency would be revealed.
Defendant‘s erroneous conclusion regarding the victim‘s ability to speak before she died was the key factor leading to plaintiff‘s arrest. The assistant prosecutor testified in his deposition that defendant‘s medical opinion was “the most important part of my decision-making process.” On these facts, plaintiff‘s proofs in opposition to the motion for summary disposition thus raised a material question of fact regarding the statutory standard for gross negligence.
IV. DUTY (RENO v CHUNG)
The Court of Appeals in this case extended the public duty doctrine of White v. Beasley, 453 Mich. 308; 552 N.W.2d 1 (1996), to hold that defendant medical examiner owed no duty to and had no special relationship with plaintiff. Because the Legislature
The question presented is whether defendant medical examiner owed a duty to plaintiff, a person under investigation for murder, as a consequence of performing an autopsy to ascertain the victim‘s cause of death and testifying as a state‘s witness against plaintiff.13 Whether a duty exists to protect a person from a reasonably foreseeable harm is a question of law for the court. Murdock v. Higgins, 454 Mich. 46, 53; 559 N.W.2d 639 (1997); Trager v. Thor, 445 Mich. 95, 105; 516 N.W.2d 69 (1994). “A negligence action may only be maintained if a legal duty exists which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96; 485 N.W.2d 676 (1992).
We need not apply the usual Buczkowski common-law analysis, since statutory law provides that defendant owed no legal duty to plaintiff.
A. A MEDICAL EXAMINER‘S STATUTORY OBLIGATIONS
The statutory powers and duties of a county medical examiner are found at
B. WITNESS IMMUNITY
Defendant Chung consulted with the prosecutor and later testified against plaintiff as the state‘s factual and expert witness at plaintiff‘s preliminary examination. As such, her role was plainly adversarial to plaintiff‘s interests. In Friedman v. Dozorc, supra, this Court declined to impose a duty on an attorney to his client‘s adversary, stating that to do so would be “inconsistent with basic precepts of the adversary system.” Id. at 23. Moreover, the duty imposed on a witness is generally owed to the court, not the adverse party. Accordingly, a breach of the duty owed
Further, witnesses who testify during the course of judicial proceedings enjoy quasi-judicial immunity. This immunity is available to those serving in a quasi-judicial adjudicative capacity as well as “those persons other than judges without whom the judicial process could not function.” 14 West Group‘s Michigan Practice, Torts, § 9:393, p 9-131. Witnesses who are an integral part of the judicial process “are wholly immune from liability for the consequences of their testimony or related evaluations.” Id., § 9:394, pp 9-131 to 9-132, citing Martin v. Children‘s Aid Society, 215 Mich. App. 88, 96; 544 N.W.2d 651 (1996). Statements made during the course of judicial proceedings are absolutely privileged, provided they are relevant, material, or pertinent to the issue being tried. See Martin v. Children‘s Aid Society, supra; Rouch v. Enquirer & News of Battle Creek, 427 Mich. 157, 164; 398 N.W.2d 245 (1986); Meyer v. Hubbell, 117 Mich. App. 699, 709; 324 N.W.2d 139 (1982); Sanders v. Leeson Air Conditioning Corp., 362 Mich. 692, 695; 108 N.W.2d 761 (1961). Falsity or malice on the part of the witness does not abrogate the privilege. Sanders, supra. The privilege should be liberally construed so that participants in judicial proceedings are free to express themselves without fear of retaliation. Id. As this Court noted in Daoud v. De Leau, 455 Mich. 181, 202-203; 565 N.W.2d 639 (1997):
Witness immunity is also grounded in the need of the judicial system for testimony from witnesses who, taking their oaths, are free of concern that they themselves will be targeted by the loser for further litigation. Absent perjury of a character requiring action by the prosecuting attorney, the testimony of a witness is to be weighed by the factfinder in the matter at bar, not by a subsequent jury summoned to determine whether the first lawsuit was tainted . . . .
We reject as factually inaccurate plaintiff‘s claim that witness immunity is unavailable here because the “impact” of defendant‘s opinion “was not initiated and did not occur in any judicial proceeding . . . .” The autopsy, investigating the circumstances surrounding Robin Reno‘s death, was performed under statutory mandate and was a necessary predicate to defendant‘s statutorily compelled testimony. Moreover, defendant‘s testimony at the preliminary examination regarding the autopsy results led to plaintiff‘s continued detention. Indeed, scrutiny of the deposition testimony of plaintiff‘s experts reflects that their opinions hinged on her medical findings and her testimony in court. (See excerpts of Mathog and Simson depositions quoted at pp 128-129, supra.) Plaintiff cannot avoid the protection of witness immunity by artful pleading; the gravamen of plaintiff‘s action is determined by considering the entire claim.
Because defendant owed no legal duty to plaintiff, the gross negligence claim alleged is unenforceable as a matter of law. Summary disposition was properly granted under
V. CONCLUSION
In Maiden v Rozwood, we reverse the order of the Court of Appeals and affirm the trial court‘s order
WEAVER, C.J., and TAYLOR and YOUNG, JJ., concurred with CORRIGAN, J.
KELLY, J. I respectfully dissent from the majority opinion in both Maiden v Rozwood (Docket No. 110035) and Reno v Chung (Docket No. 107936). In Maiden, I would hold that plaintiff has presented sufficient evidence of defendants’ gross negligence to survive a motion for summary disposition. In Reno, I would hold that defendant owed a duty to plaintiff that supported a cause of action for gross negligence under the governmental immunity statute.
I. MAIDEN v ROZWOOD
A
In finding a lack of gross negligence on the part of defendants in this case, the majority erroneously concludes that the statement by defendant Myles was inadmissible hearsay and, therefore, may not be considered by this Court. In addition, the majority needlessly engages in a discussion concerning evidence admissibility under
B
Reviewing the evidence in the light most favorable to plaintiff in this case, the facts support her assertion that a jury reasonably could find that defendants’ actions constituted gross negligence.
The governmental immunity statute defines gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”
Contrary to the majority‘s assertion, plaintiff has provided a significant amount of factual support in the record to establish gross negligence on the part of the defendants. In particular, defendants’ supervisor testified at his deposition:
[T]here are no techniques that I demonstrate whereby an individual is placing their weight on a client‘s head, neck, chest, back, buttocks, legs. It‘s not — we do not instruct that.
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[W]hat I train are the techniques which are approved for use, they know that those are the techniques that are
approved for use, and use of any other technique may not be considered an approved technique.
He also testified that defendants were not taught any technique that would allow them to put pressure on the head or neck. None of the methods of restraint defendants were taught would result in a person not being able to breathe for an extended period.
There is clear evidence in the record that defendants disregarded their training and used “unapproved” restraining techniques. For example, in defendant Rozwood‘s written statement to the Michigan State Police, he indicated that he “sprawled myself across his upper body trying to grab his [right] arm,” and “pushed myself more on to Leith‘s [left] side of back hoping my weight would assist in [at] least restricting his [left] side from twisting.” He also admitted putting “both my hands on the back of his head” and holding him down for a few seconds. He gave similar testimony at his deposition:
I put my arm, I believe on his head, to stabilize his head so he couldn‘t move his head anymore to lunge, and then I would sit there and continue to talk to him, and that‘s what went on.
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Q. You just indicated to your neck, when you were showing what area you grabbed, were you holding his neck or head?
A. The back of his head, right over here.
Q. Right at the base of his neck?
A. At the base, bottom part of his head.
Q. And were you holding it hard enough so he could not move his head?
A. For that initial moment, yeah.
Q. Was [Rozwood] holding on to his arms or his legs or any other part of his body?
A. More than likely — I think he was lying across his — across the side of his back trying to hold his back down onto the floor . . . .
As regards his own actions, defendant Troy testified that he may have lain across the decedent‘s back at some time:
Q. Did you see anybody laying across Leith‘s back or neck at any time?
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A. I might have been laying across his back. I‘m not even sure.
In addition, defendant Myles’ statement to the police implicated himself in forcefully subduing Leith Maiden along with Paul Troy and Henry Rozwood. The majority incorrectly states that Myles’ statement was not admissible under
Myles is a named defendant in this joint tortfeasor action by virtue of his direct involvement in the effort to restrain defendant. The evidence in question is directly probative of Myles’ negligence and is his own
Hence, as the evidence presented illustrates, defendants violated their training procedures for subduing a patient, knowing the possible consequences of restraining a patient improperly. Those facts constitute significant evidence that they were acting with “a substantial lack of concern for whether an injury results.”
As plaintiff noted, Harrison, Principles of Internal Medicine (12th ed), also supports her assertion that the defendants suffocated Mr. Maiden in a manner that evidenced a substantial lack of concern for whether they injured him. In discussing the subject of Anoxic-Ischemic Encephalopathy,1 the following language pertains to the instant case:
This common and often disastrous condition is caused by a lack of oxygen to the brain, resulting from . . . respiratory failure. . . . The conditions that most often lead to anoxic-ischemic encephalopathy are . . . (5) suffocation (from drowning, strangulation . . . compression of the trachea . . . ).
With severe hypoxia or anoxia [loss of oxygen] . . . consciousness is lost within seconds, but recovery will be complete if breathing, oxygenation of blood and cardiac action are restored within 3 to 5 min. If anoxia persists beyond this time, there is serious and permanent injury to the brain . . . . [Id., p 2050].2
The majority emphasizes that the events leading up to the death were relatively chaotic. While this is certainly true, defendants were professionals who were trained to deal with chaotic situations. A jury might ultimately decide that the defendants were, in fact, justified in their actions. However, the question is not for this Court to decide. Rather it is asked only to determine whether there is sufficient evidence in the record to create a question of fact. I believe that plaintiff has produced enough evidence that reasonable minds could differ as to whether these defendants were grossly negligent.
Thus, I would affirm the judgment of the Court of Appeals and hold that plaintiff has presented sufficient evidence of defendants’ gross negligence to survive a motion for summary disposition.
I agree with the majority that defendant‘s actions in this case clearly constituted gross negligence. However, I would hold that defendant owed a duty to plaintiff that supports a cause of action for gross negligence under the governmental immunity statute.
The majority maintains that defendant Reno owes no duty to this plaintiff. It bases that conclusion on the fact that she is statutorily required to perform autopsies and to testify in court for the prosecutor and had no “special relationship” with plaintiff. Ante at 130. It concludes that “our Legislature has defined a medical examiner‘s duties. Nothing in the statutory scheme has created duties to a criminal defendant; instead, the duty is owed to the state.” Id. at 132. The majority takes great pains to point out that this opinion is not to be read as extending the public duty doctrine.
However, the majority‘s pronouncements are strongly reminiscent of those in the lead opinion in White v. Beasley,3 which stated that “[g]overnment employees should enjoy personal protection from tort liability based on their action in conformity with, or failure to conform to, statutes or ordinances not intended to create tort liability.” Id. at 319.
Indeed, owing a duty to the state or the prosecutor is synonymous with owing a duty to the public-at-large, as the state and prosecutor are representatives of the public. I fail to see the difference between the majority‘s “traditional” duty analysis and an untoward expansion of the public duty doctrine. The opinion
The opinion acknowledges that the statutory provisions outlining the duties of medical examiners do not delineate the examiner‘s duties in all cases. “There may well be instances of misconduct on the part of a medical examiner that are not implicated by the statute.” Ante at 131, n 12.
However, the opinion makes no attempt to clarify this statement and explain why the unusual actions by defendant Chung in this case would not constitute such circumstances. Not only did defendant Chung negligently perform the autopsy, she took active steps to cover up her failures when the prosecutor and defense counsel tried to verify her findings. The majority provides no indication that the Legislature intended to protect medical examiners under such circumstances.
The majority opinion misconstrues the nature of plaintiff‘s claim. He does not allege that the defendant failed to perform her statutory duties; rather, he argues that she performed the autopsy in a grossly negligent manner, and that she tried to hide the evidence of it, afterward. The difference is critical. Defendant owes a duty to the state to autopsy certain decedents. Plaintiff cannot hold her liable for failing to autopsy a certain body. However, once she pulls out the scalpel and makes the first incision, a duty to another may attach depending on how she performs her work.
In this case, the factors weigh in favor of finding an enforceable duty. The injury to plaintiff was actually and directly foreseeable to defendant. Before seeking defendant‘s professional opinion, the prosecutor specifically identified plaintiff and his account of Robin Reno‘s dying declaration. Under the circumstances, defendant was well aware that her opinion would play a major part in the decision to charge and incarcerate plaintiff. The performance of defendant‘s duties clearly affected plaintiff in a manner different from the general public.
In addition, the burden on defendant to perform her duties without gross negligence was minimal. Certainly it is to be expected that a medical person employed to accurately determine the medical cause of an unexpected death should be able to accomplish that task.
Other states’ case law supports a finding of duty here. For example, in Lauer v. New York City,4 the court held that the plaintiff had stated valid claims for negligent and intentional infliction of emotional distress. There, a medical examiner failed to properly perform an autopsy and concealed information that caused the plaintiff to be wrongfully suspected in the death of his child. The court stated:
Defendants’ claim that no duty was owed directly to plaintiff is without merit. Even if, as defendants assert, the duty to perform the original autopsy in a responsible manner was owed solely to the public at large as a governmental function, when Lilavois later discovered his error, a duty was owed directly to plaintiff to transmit truthfully the information concerning his son‘s death, especially in light of his alleged knowledge that plaintiff was suspected of the homicide. [Id.]5
In this case, defendant not only negligently failed to correctly perform the autopsies, she refused to cooperate with the prosecutor when he attempted to substantiate her findings. She forced the prosecutor to obtain a court order to examine forensic evidence,
I also disagree with the majority‘s assertion that a finding of liability here will infringe the adversarial process. The majority characterizes the relationship between plaintiff and defendant as adversarial, defendant having sided with the prosecution during her court testimony at plaintiff‘s preliminary examination. What the majority disregards is that, while defendant ultimately became plaintiff‘s adversary in court, it was as a direct result of her gross negligence in performing the autopsy.
Moreover, defendant‘s actions in attempting to cover up her incompetence take this case out of the norm. But for defendant‘s original incompetence, and her subsequent attempts to hinder a discovery of the facts in the case, plaintiff and defendant would likely never have become adversaries. Holding defendant liable for her gross negligence in this instance would not prevent competent medical examiners from testifying fully. Rather, it would encourage them to take greater care in performing autopsies in the future.
Thus, I would reverse the judgment of the Court of Appeals and remand to the trial court for further proceedings consistent with this opinion.
BRICKLEY and CAVANAGH, JJ., concurred with KELLY, J.