Dawe v. Dr. Reuven Bar–levav & Assocs., PC

Citation289 Mich.App. 380,808 N.W.2d 240
Decision Date12 August 2010
Docket NumberDocket No. 269147.
CourtCourt of Appeal of Michigan (US)

289 Mich.App. 380
808 N.W.2d 240


Docket No. 269147.

Court of Appeals of Michigan.

Submitted May 11, 2010, at Lansing.Decided Aug. 12, 2010, at 9:00 a.m.

[808 N.W.2d 243]

Mark Granzotto, P.C. (by Mark Granzotto), and Haas & Goldstein, P.C. (by Justin Haas), for plaintiff.

Collins, Einhorn, Farrell & Ulanoff, P.C. (by Noreen L. Slank), for defendants.


[289 Mich.App. 383] This medical malpractice action returns to this Court on remand from the Michigan Supreme Court 1 with the direction that we evaluate the remaining issues raised in defendants' original appeal and plaintiff's cross-appeal.2 In the original appeal, defendants, Dr. Reuven Bar–Levav & Associates, the estate of Dr. Reuven Bar–Levav, and Dr. Leora Bar–Levav, appealed as of right the jury verdict in favor of plaintiff, Elizabeth Dawe, on various grounds. On cross-appeal, Dawe appealed the trial court's calculation of prejudgment interest on the jury's award and the trial court's refusal to permit the admission of certain evidence. We vacate the award of prejudgment interest and remand for recalculation of the interest consistently with this opinion. In all other respects, we affirm.

[289 Mich.App. 384] I. BASIC FACTS

The basic facts were set out in our previous opinion 3 as follows:

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. [Reuven] 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

[808 N.W.2d 244]

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 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

[289 Mich.App. 385] 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.

[808 N.W.2d 245]

At trial, Dawe argued that defendants breached their duty to warn and that defendants breached their duty to provide [289 Mich.App. 386] 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 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.

In dissent, Judge Smolenski concluded that MCL 330.1946 applies to patients who are “recipients,” as that term is defined in MCL 330.1100c(12), 7 and because Brooks was not a recipient, MCL 330.1946(1) did not abrogate or modify defendants' common-law duty to protect a third party from Brooks. Thus, Judge Smolenski concluded that the statute did not abrogate or modify Dawe's common-law claim against defendants.8

Dawe sought leave to appeal in the Michigan Supreme Court, and defendants sought leave to cross-appeal. The Supreme Court reversed this Court's decision, holding as follows:

[289 Mich.App. 389] Although the Legislature partially abrogated a mental health professional's common-law duties, the language of the statute expressly limits its own scope. The final sentence of MCL 330.1946(1) states that “[e]xcept 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.” (Emphasis added.) The type of threat described in subsection (1) is “a threat of physical violence against a reasonably identifiable third person....” MCL 330.1946(1). Further, the patient making the threat must have “the apparent intent and ability to carry out that threat in the foreseeable future” before a mental health professional's duty under MCL 330.1946(1) is triggered. Therefore, MCL 330.1946(1) only modified a mental health professional's common-law duty to warn or protect a third person when a “threat as described in [MCL 330.1946(1) ]” was communicated to the mental health professional because the statute only places a duty on mental health professionals to warn third persons of or protect them from the danger presented by a threat “as described” in MCL 330.1946(1). This statutory duty only arises if three criteria are met: (1) a patient makes a threat of physical violence, (2) the threat is against a reasonably identifiable third person, and (3) the patient has the apparent intent and ability to carry out the

[808 N.W.2d 247]

threat. If these three criteria are not met, the mental health professional's duty under the statute is not triggered. Thus, on its face, the statute does not completely abrogate a mental health professional's separate common-law special relationship duty to protect his or her patients by exercising reasonable care.9

In lieu of granting defendants' application for leave to cross-appeal, however, the Supreme Court remanded the matter to this Court for consideration of the remaining issues raised on appeal.10 The Supreme Court directed this Court's “attention to the jury instructions, [289 Mich.App. 390] which may not have properly distinguished between the statutory and common-law claims in this case.” 11


Defendants note that Dawe's medical malpractice claim was based on an alleged duty to protect her from Brooks by not placing them in group therapy together. Defendants argue that they did not have a common-law duty to protect Dawe from Brooks's criminal acts because...

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    ...has "long recognized that criminal acts by third parties can be foreseeable." Dawe v. Dr. Reuven Bar–Levav & Assoc., P.C. (On Remand), 289 Mich.App. 380, 394, 808 N.W.2d 240 (2010). The Dawe case was a malpractice action arising out of injuries the plaintiff received in a murderous rampage ......
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