*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 88 NW 695 Nicholson *3 Tecumseh, App City Knight [63 Wayne County, (1975)], Lockaby 234 NW2d 444, 190-191; 234 NW2d App Freeman, Snow agree that the treatment (1974)]. compelled to We are Hospital function, rendering of Detroit immune tal liability.” White, supra, at 548. is affirmed. Costs trial court’s decision defendants. (dissenting). The issues in Brown to those in this case are identical

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.