Brown v. City of Detroit

• Citation: 268 N.W.2d 400,83 Mich.App. 342
• Decision Date: 10 May 1978
• Docket Number: Docket No. 77-2552
• Parties: Offie BROWN, Plaintiff-Appellant, v. CITY OF DETROIT, and Detroit General Hospital, a corporation, Defendants- Appellees.
• Court: Court of Appeal of Michigan (US)

Page 400

268 N.W.2d 400

83 Mich.App. 342

Offie BROWN, Plaintiff-Appellant, v. CITY OF DETROIT, and Detroit General Hospital, a corporation, Defendants- Appellees.

Docket No. 77-2552.

Court of Appeals of Michigan.

May 10, 1978.

Released for Publication Aug. 3, 1978.

Lopatin, Miller, Bindes, Freedman & Bluestone by Michael Gagleard, Detroit, for plaintiff-appellant.

James S. Goulding, Detroit, for defendants-appellees.

Before T. M. BURNS, P. J., and CAVANAGH and RILEY, JJ.

PER CURIAM.

The plaintiff contends that the operation of a community owned hospital is not a governmental function which is immune from tort liability. This precise question was recently decided against the plaintiff in White v. Detroit, 74 Mich.App. 545, 254 N.W.2d 572 (1977).

"While other areas may require us to use our 'creative genius' to resolve the issue of 'governmental function', Thomas v. Department of State Highways, 398 Mich. 1, 11, 247 N.W.2d 530, 533 (1976) an unbroken line of Michigan authority holds that operation of a community owned hospital is a governmental function. Martinson v. Alpena, 328 Mich. 595, 44 N.W.2d 148 (1950); Nicholson v. Detroit, 129 Mich. 246, 88 N.W. 695 (1902); Knight v. City of Tecumseh, 63 Mich.App. 215, 234 N.W.2d 457 (1975); Lockaby v. Wayne County, 63 Mich.App. 185, 190-191, 234 N.W.2d 444, 446 (1975); Snow v. Freeman, 55 Mich.App. 84, 222 N.W.2d 43 (1974). We are compelled to agree that the treatment of plaintiff by Detroit General Hospital was a governmental function, rendering the City of Detroit immune from liability." White, supra, at 548, 254 N.W.2d at 574.

The trial court's decision is affirmed. Costs to appellees.

T. M. BURNS, Presiding Judge, dissenting.

This is a medical malpractice action which in all respects, save one, is not unlike any other malpractice case we might see. The difference from other cases of this nature is that when plaintiff found himself in need of medical treatment, he made the mistake of seeking it at a hospital owned and operated by the City of Detroit. On that basis, the trial court dismissed the case.

The defendants do not rely on any judicially created, policy based immunity. That has all been abrogated; in the case of charitable institutions, such as hospitals, by Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1 (1960), and the case of cities, by Williams v. Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961), and finally, the state and its agencies in Pittman v. City of Taylor, 398 Mich. 41, 247 N.W.2d 512 (1976). Instead, they rely on a statute which provides for immunity "in all cases wherein said government agency is engaged in the exercise or discharge of a governmental function". M.C.L. § 691.1407; M.S.A. § 3.996(107).

Plaintiff alleged in his complaint that he presented himself for treatment of gunshot wounds to the head on November 27, 1974, was examined and sent home. He further alleged that he returned on November 29, 1974, with complaints of increased pain to his eyes and nausea. He alleges malpractice in the defendant's failure to admit him to the hospital, remove the pellets from his head, and otherwise comply with the appropriate standard of care. To say that these allegations require an implication of a governmental function is wrong. White v. Detroit, 74 Mich.App. 545, 548, 254 N.W.2d 572 (1977) (T. M. Burns, J., Dissenting); Duncan v. Detroit, 78 Mich.App. 632, 634-635, 261 N.W.2d 26 (1977) (T. M. Burns, J., Dissenting). ¹ There...