Canon v. Thumudo

• Decision Date: 03 May 1988
• Docket Number: 77726 and 77963,Docket Nos. 77151
• Citation: 430 Mich. 326,422 N.W.2d 688
• Parties: Jack C. CANON and Beverly A. Canon, Individually and as Coguardians of Marcia Lynn Canon, Plaintiffs-Appellants, v. Donna THUMUDO, M.S.P.S., Dolores McKeon, Defendants-Appellees, and Livingston County Community Mental Health Services, Defendant. Ruby DAVIS, Administratrix, of the Estate of Mollie Barnes, Deceased, Plaintiff-Appellee, v. Dr. Yong-Oh LHIM, Defendant-Appellant. Estel HALL, Personal Representative of the Estate of Anna Bell Hall, Deceased, on behalf of the estate, Plaintiff-Appellee, v. Kyung S. HAN, M.D., Defendant-Appellant, and Redencion B. Lustre, M.D., and Don Spivak, M.D., jointly and severally, Defendants. 430 Mich. 326, 422 N.W.2d 688
• Court: Michigan Supreme Court

Page 688

422 N.W.2d 688

Jack C. CANON and Beverly A. Canon, Individually and as

Coguardians of Marcia Lynn Canon, Plaintiffs-Appellants, v. Donna THUMUDO, M.S.P.S., Dolores McKeon,

Defendants-Appellees,

and

Livingston County Community Mental Health Services,

Defendant.

Ruby DAVIS, Administratrix, of the Estate of Mollie Barnes, Deceased, Plaintiff-Appellee, v. Dr. Yong-Oh LHIM, Defendant-Appellant.

Estel HALL, Personal Representative of the Estate of Anna

Bell Hall, Deceased, on behalf of the estate, Plaintiff-Appellee, v. Kyung S. HAN, M.D., Defendant-Appellant, and Redencion B. Lustre, M.D., and Don Spivak, M.D., jointly and severally, Defendants.

Docket Nos. 77151, 77726 and 77963.

430 Mich. 326, 422 N.W.2d 688

Supreme Court of Michigan.

Argued March 4, 1987.

Decided May 3, 1988.

The O'Bryan Law Center, D. Michael O'Bryan, Birmingham, for plaintiffs/appellants in No. 77151.

Cummings, McClorey, Davis & Acho, P.C., Owen J. Cummings, Edward E. Salah, Livonia, for defendants/appellees in No. 77151.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen and Bartnick by Monica Farris Linkner, Detroit, for plaintiff-appellee in No. 77726.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George L. McCargar and Mark S. Meadows, Asst. Attys. Gen., Dept. of Atty. Gen., Mental Health Div., Lansing, for defendant/appellant in No. 77726.

Joel Klein, Paul M. Smith, Onek, Klein & Farr, Washington, D.C., for amicus Michigan Psychiatric Society.

Thomas Downs, Thomas Downs, P.C., Lansing, for amicus Michigan Psychological Ass'n.

Donald N. Bersoff, Laurel Pyke Malson, Kit Adelman-Pierson, Ennis, Friedman, Bersoff & Ewing, Washington, D.C., for amicus American Psychological Ass'n John A. Braden, Muskegon, for amicus curiae Michigan Trial Lawyers ass'n.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George L. McCargar and Thomas R. Wheeker, Asst. Attys. Gen., Dept. of Atty. Gen., Mental Health Div., Lansing, for defendant-appellant Han in No. 77963.

GRIFFIN, Justice.

In each of these cases we must decide whether a government-employed mental health professional was protected by immunity from tort liability for particular acts performed in the course of employment. We resolve these cases under our ruling in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). ¹

The facts of each case will be addressed separately. First, however, we shall review the dichotomy established in Ross which controls the outcome of these cases--the distinction between acts which are discretionary-decisional and those which are ministerial-operational. ²

I

The governmental immunity act, M.C.L. Sec. 691.1401 et seq.; M.S.A. Sec. 3.996(101) et seq., enacted in 1964, did not address whether or when immunity from tort liability is available to individuals as officers, employees, and agents of a governmental agency. The judicial debate which ensued regarding the scope of individual immunity led to a resolution by this Court in Ross. The Ross Court declared lower-level governmental officials, employees, and agents to be immune from tort liability when they are:

"(1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;

"(2) acting in good faith; and

"(3) performing discretionary, as opposed to ministerial acts." Id., pp. 633-634, 363 N.W.2d 641.

It is not disputed that each of the defendants in these cases is a "lower-level" government employee within the meaning of Ross. Furthermore,the plaintiff in each case has conceded, either below or in argument before this Court, that the defendant neither acted in bad faith nor was engaged in ultra vires activities, i.e., acts outside the scope of employment. Accordingly, the issue in each case is whether the allegedly negligent activity on the part of the defendant was ministerial in nature, rather than discretionary.

In Ross, we explained the distinction between "discretionary" and "ministerial" acts as follows:

" 'Discretionary' acts have been defined as those which require personal deliberation, decision, and judgment. Prosser [Torts (4th ed) ], Sec. 132, p. 988. This definition encompasses more than quasi-judicial or policy-making authority, which typically is granted only to members of administrative tribunals, prosecutors, and higher level executives. However, it does not encompass every trivial decision, such as 'the driving of a nail,' which may be involved in performing an activity. For clarity, we would add the word 'decisional' so the operative term would be 'discretionary-decisional' acts.

" 'Ministerial' acts have been defined as those which constituted merely an obedience to orders or the performance of a duty in which the individual has little or no choice. Id. We believe that this definition is not sufficiently broad. An individual who decides whether to engage in a particular activity and how best to carry it out engages in a discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a nontortious manner. In a nutshell, the distinction between 'discretionary' and 'ministerial' acts is that the former involves significant decision-making, while the latter involves the execution of a decision and might entail some minor decision-making. Here too, for clarity, we would add the word 'operational' so the operative term would be 'ministerial-operational' acts." Ross, supra, pp. 634-635, 363 N.W.2d 641. See also Bandfield v. Wood, 421 Mich. 774; 364 N.W.2d 280 (1985).

The Ross decision directs courts to look to "the specific acts complained of, rather than the general nature of the activity.... The ultimate goal is to afford the officer, employee, or agent enough freedom to decide the best method of carrying out his or her duties, while ensuring that the goal is realized in a conscientious manner." Id., p. 635, 363 N.W.2d 641.

In light of its broad implications, we reject at the outset a definition of "ministerial" which one Court of Appeals panel has sought to impose upon government-employed professionals. We refer to the theory advanced below in Davis v. Lhim (On Remand), 147 Mich.App. 8, 12-15, 382 N.W.2d 195 (1985), lv. gtd. 425 Mich. 851 (1986), that any act of a professional which deviates from professional standards is, ipso facto, ministerial in nature. In that case, the panel's majority opined:

"Implicit in the Supreme Court's explanation [in Ross ] is the recognition that to decide whether or not to engage in a particular activity means that either alternative would be permissible. We conclude that the Supreme Court did not intend to shield from liability persons who were faced with doing something permissible or something impermissible--merely because it was a theoretical option. Where an individual is faced with such a 'choice,' we conclude that the Supreme Court intended that situation to be placed in the 'ministerial-operational' category.

* * *

"A professional, otherwise liable because he or she has deviated from the appropriate standard of care, cannot contend that he or she had discretion to violate that standard.

"Thus, in terms of Ross defendant was required to be 'obedient' to a standard and perform his duties consistent therewith, having 'little or no choice' in the matter, the minimal definition of a ministerial-operational activity. As stated in Ross, supra [420 Mich. at], p. 635 , ministerial acts 'must be performed in a non-tortious manner.' "

To adopt such a definition for "ministerial" would come close to eliminating all immunity for professionals by confusing the issues of immunity and negligence. The distinction is significant. If every act which deviates from a professional norm were to be categorized as "ministerial," immunity would seldom shield professional discretion. Nothing in Ross, supra, hints at such a drastic limitation on the scope of individual immunity. To the contrary, in Ross, we cited with approval Justice Edwards' observation in Williams v. Detroit, 364 Mich. 231, 261-262, 111 N.W.2d 1 (1961), that " '[d]iscretion implies the right to be wrong.' " Ross, supra, 420 Mich. at p. 628, 363 N.W.2d 641. The very concept of immunity presupposes that the activities complained of may have been negligently performed--i.e., in violation of the requisite standard of care. In protecting significant decisionmaking on the part of public employees from tort liability, Ross intended "to ensure that a decision-maker is free to devise the best overall solution to a particular problem, undeterred by the fear that those few people who are injured by the decision will bring suit." Ross, supra, p. 631, 363 N.W.2d 641. Courts should take care not to confuse their separate inquiries into immunity and negligence. ³

II

In Canon, plaintiffs Jack and Beverly Canon brought suit for injuries sustained by their daughter Marcia when she jumped from the second story of her parents' home on July 29, 1981. Marcia had been an outpatient at the Livingston County Community Mental Health Services (LCCMHS), a government-owned mental health facility. Although the suit originally named other defendants and included other claims, this appeal involves only the plaintiffs' claims of negligence against Donna Thumudo, M.S.P.S., and Dolores McKeon, R.N., two nurses employed by LCCMHS. ⁴

The Livingston Circuit Court entered summary judgment in favor of defendants Thumudo and McKeon, and the Court of Appeals affirmed. ⁵ We granted leave to appeal. ⁶

The record on appeal indicates that prior to Marcia's outpatient treatment at LCCMHS, she had a history of drug abuse and suicide attempts. At her mother's request, she had been admitted to Mercywood Hospital for psychiatric treatment following a November 13, 1979, suicide attempt in which she slit her wrists. In addition to a reference to suicide as a "notable caution," the Mercywood file on Marcia included information...