*1 DETROIT SCHWARTZ CITY OF 16, 1978, January at Detroit. 77-2516.Submitted Docket No. 23, 1978. appeal applied Decided May for. to Leave Complaint by Detroit Louis the Schwartz malpractice damages Hospital, for for medical tracheostomy. judgment performance Accelerated for de- of a fendant, immunity, Wayne Circuit based Court, Duggan, appeals. Held: J. Plaintiff Patrick way Summary judgment raise the issue of grant of accelerated was not judgment not reversible error where municipal hospital are immune from prejudiced. of a Activities liability in tort actions. Affirmed. He would hold that medical dissented. of a does governmental immunity.
Opinion of the Court Judg- Immunity—Motions—Summary 1. Torts—Governmental Judgment—Prejudice. ment—Accelerated proper way summary to raise the is the A motion for action, raising immunity in a tort but issue was not reversi- a the issue motion prejudiced. was not ble error where Immunity—Statutes. 2. Constitutional Law—Governmental Michigan’s governmental immunity constitutional. Immunity—Community-Owned Hos- 3. pital—Governmental Functions. community-owned hospital the treatment and patients by functions are such [2] [3, [1] Immunity 73 Am 4] 72 Am tal 40 Am Jur unit or Jur Jur 2d, 2d, agency References 2d, States 99.§ Summary liability Hospitals operating hospital. 25 ALR2d 203. for Judgment damages Points in Headnotes Asylums § in tort of state 6. § or 1978] Schwartz
rendering municipality liability negligence actions. T.M. P.J. *2 Immunity—Medical Malpractice. of Claims medical of a tracheos- tomy do not function" under the governmental immunity statute. Lopatin, Miller, Bindes, Freedman & Bluestone Gagleard), (by plaintiff. Michael Tyler, Schwartz, Sommers, Silver, Schwartz & (by Goulding), P. C. S. James for defendant. Cavanagh Before: T. M. P. and M. F. and D. C. JJ. Riley,
Per Curiam. The defendant herein secured ac- plaintiff’s malpractice celerated on granted grounds claim. Defendant’s motion was governmental of order plaintiff right. appeals by was entered and outset, At the we note that defendant’s motion grounds govern- on the of immunity mental should have been a motion for summary judgment. Michigan, McCann v 398 Wayne 65, Mich NW2d 521 Butler v County Dept, App 202, Sheriff’s 75 203; 255 (1977). plaintiff 7 NW2d was prejudiced mislabeling mo- defendant’s tion as the motion averred that to state a claim had failed upon granted which relief could be and because the defendant im- had munity. challenge
Plaintiff’s initial to the constitutional- ity immunity of the has rejected by Rohrabaugh been this Court. See v 590 83 Mich 592 by T. Authority Corp, Metropolitan
Huron-Clinton cases therein. discussed operation of a that also contends
Plaintiff hospital community not a owned liability. This tort which is function precise recently question decided App 545; Detroit, 74 Mich in White (1977). NW2d 572 our 'cre- may require us to use areas "While other 'governmental to resolve the issue genius’ ative
function’,
Department
Highways,
State
Thomas
(1977)]
1, 11;
an unbro-
authority
Michigan
holds that
ken line of
function.
community owned
595; 44
NW2d
Alpena, 328 Mich
Martinson
briefs also my panel. For the reasons stated this heard claims of Brown, I do believe dissent performing medical implicate under function” for trial. remanded The case should be statute.