Dawe v. Bar-Levav & Assoc., Docket No. 269147.

CourtCourt of Appeal of Michigan (US)
Writing for the CourtWhitbeck
Citation279 Mich. App. 552,761 N.W.2d 318
Docket NumberDocket No. 269147.
Decision Date10 July 2008
761 N.W.2d 318
279 Mich. App. 552
Docket No. 269147.
Court of Appeals of Michigan.
Submitted September 11, 2007, at Detroit.
Decided July 10, 2008, at 9:05 a.m.

[761 N.W.2d 320]

Mark Granzotto, P.C., Royal Oak (by Mark Granzotto), and Haas & Goldstein, P.C., Farmington Hills (by Justin Haas), for the plaintiff.

Collins, Einhorn, Farrell & Ulanoff, P.C., Southfield (by Noreen L. Slank and Regina T. Delmastro) for the defendants.


Opinion of the Court


In this medical malpractice action, defendants Dr. Reuvan Bar-Levav & Associates, the estate of Dr. Reuvan Bar-Levav (Dr. Bar-Levav), and Dr. Leora Bar-Levav appeal as of right the jury verdict in favor of Elizabeth Dawe on various grounds. On cross-appeal, Dawe appeals the trial court's calculation of prejudgment interest on the jury's award. We reverse, vacate the judgment, and remand.


This medical malpractice action arises out of a shooting incident at defendants' psychiatric office where Dawe received treatment. On June 11, 1999, Joseph Brooks, who was a former patient of Dr. Bar-Levav,1 came to the office, drew a handgun, and shot and killed Dr. Bar-Levav. Brooks then proceeded to the back of the office and fired into Dawe's group therapy room. Brooks killed one patient and wounded others, including Dawe. After firing dozens of rounds into the room, Brooks committed suicide.

Dawe sued defendants, alleging that Brooks made threatening statements to defendants in which he indicated that he "fantasized about murdering" and that he demonstrated his ability to carry out threats by coming to defendants' office

761 N.W.2d 321

with a handgun. Dawe further alleged that a "`manuscript'" that Brooks delivered to defendants in June 1999 "could be reasonably construed as a threat of violence against other members who participated in his group therapy sessions, including [Dawe]." Accordingly, Dawe alleged that defendants were liable under two theories: statutory liability for failure to warn under MCL 330.1946, and common-law medical malpractice. With respect to her common-law medical malpractice claim, Dawe alleged that defendants breached their applicable standard of care, which included "informing the police, warning patients or others, and taking reasonable precautions for the protection of patients when a doctor or health care provider has information which could reasonably be construed as a threat of violence against a patient or others," when defendants failed to warn Dawe and the police of Brooks's "threats" or take reasonable steps to protect Dawe. Dawe also filed an affidavit of Meritorious Claim in support of her complaint.2

Defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10), arguing that there was no evidence that Brooks expressed a threat to defendants about Dawe specifically and, therefore, defendants owed no duty to warn or protect Dawe under MCL 330.1946. Defendants also noted that Dawe was not alleging malpractice with regard to her individual care; rather, her only allegation was a failure to fulfill the duty to warn, which was derived solely from the statute.

In response, Dawe argued that it was significant that she was defendants' patient rather than merely a "third person" to whom the statute applied. Dawe argued that her special physician-patient relationship with defendants also required them to treat her within the applicable standard of care stated in her complaint. In other words, Dawe argued that defendants owed both statutory and common-law duties. Dawe further argued that she had presented a genuine issue of material fact that defendants violated that standard of care. In support of her motion, Dawe submitted the affidavit of Dr. Mark Fettman, Dawe's psychiatric expert, who attested that a psychiatrist has a duty to take reasonable precautions for the protection of patients. According to Dr. Fettman, included within this duty is the requirement that the psychiatrist assess a patient to determine if the patient is a suitable candidate for group therapy before placing the patient in a group. Dr. Fettman averred that once a patient has been placed in group therapy, the psychiatrist has a further duty to continually assess the patient to ensure that the patient remains suitable for group therapy. Dr. Fettman attested that defendants violated the applicable standard of care by placing Brooks in a group session with Dawe and other patients.

The trial court ruled that summary disposition was not appropriate because Dawe had stated a prima facie case and there were genuine issues of material fact regarding whether defendants violated MCL 330.1946 or the applicable standard of care. Accordingly, the trial court denied defendants' motion.

At trial, Dawe argued that defendants breached their duty to warn and that defendants breached their duty to provide Dawe with a safe clinical environment for her treatment. Specifically, Dawe contended that defendants breached the standard of care by placing Brooks in Dawe's group therapy sessions when they knew or should have known that Brooks was a danger to the other group members.

After the close of Dawe's proofs, defendants moved for a partial directed verdict

761 N.W.2d 322

on Dawe's claim of failure to warn under MCL 330.1946, arguing that Dawe failed to establish that Brooks communicated to defendants a threat of violence specifically against Dawe. Defendants also argued that Dawe failed to present expert testimony concerning the standard of care applicable under the statute; that is, defendants noted that Dr. Fettman's testimony applied solely to defendants' alleged duties when placing Dawe in group therapy, not to defendants' duty to warn. In response, Dawe again argued that it was significant that she was defendants' patient, apparently on the basis that MCL 330.1946 did not even apply in cases where the victim was a patient.3 Nevertheless, the trial court denied the motion on the ground that Dawe had stated a prima facie case sufficient to survive a directed verdict.

After the six-day trial in September 2005, the jury returned a verdict in favor of Dawe. Defendants moved for a judgment notwithstanding the verdict (JNOV) and for a new trial, raising several of the same issues now raised on appeal; however, the trial court denied the motions. Defendants now appeal.


Defendants argue that the only duty that a psychiatrist has to protect others from a patient is the duty imposed by MCL 330.1946, and that the Legislature abrogated all other common-law duties to protect third persons when it enacted MCL 330.1946. We agree.


MCL 330.1946(1) provides:

If a patient communicates to a mental health professional who is treating the patient a threat of physical violence against a reasonably identifiable third person and the recipient4 has the apparent intent and ability to carry out that threat in the foreseeable future, the mental health professional has a duty to take action as prescribed in [MCL 330.1946(2)]. Except as provided in this section, a mental health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person.

MCL 330.1946(2) provides:

A mental health professional has discharged the duty created under subsection (1) if the mental health professional, subsequent to the threat, does 1 or more of the following in a timely manner:

(a) Hospitalizes the patient or initiates proceedings to hospitalize the patient

761 N.W.2d 323

under [MCL 330.1400 et seq.] or [MCL 330.1498a et seq.].

(b) Makes a reasonable attempt to communicate the threat to the third person and communicates the threat to the local police department or county sheriff for the area where the third person resides or for the area where the patient resides, or to the state police.

(c) If the mental health professional has reason to believe that the third person who is threatened is a minor or is incompetent by other than age, takes the steps set forth in subdivision (b) and communicates the threat to the department of social services in the county where the minor resides and to the third person's custodial parent, noncustodial parent, or legal guardian, whoever is appropriate in the best interests of the third person.

In other words, a mental-health professional does not have a duty to take the actions described under MCL 330.1946(2) unless four criteria are met: (1) a mental-health professional is presently treating a patient, (2) that patient communicates a threat of physical violence to the mental-health professional, (3) that threat of physical violence is directed against a readily identifiable third person, and (4) the patient has the apparent intent and ability to carry out the threat in the foreseeable future.


"The common law, which has been adopted as part of our jurisprudence, remains in force until amended or repealed."5 "Whether a statutory scheme preempts, changes, or amends the common law is a question of legislative intent."6 But "legislative amendment of the common law is not lightly presumed."7 When the Legislature exercises its authority to modify the common law, "it should speak in no uncertain terms."8


When interpreting a statute,

[t]his Court's primary task ... is to discern and give effect to the intent of the Legislature. "The words of a statute provide `the most reliable evidence of [the Legislature's] intent....'" In discerning legislative intent, a court must "give effect to every word, phrase, and clause in a statute.... The Court must consider "both the plain meaning of the critical word or phrase as well as `its placement and purpose in the statutory scheme.'" "The statutory language must be read and...

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