Faigenbaum v. Oakland Medical Center

• Court: Court of Appeal of Michigan
• Writing for the Court: ALLEN
• Citation: Faigenbaum v. Oakland Medical Center, 373 N.W.2d 161, 143 Mich.App. 303 (Mich. App. 1985)
• Decision Date: 15 August 1985
• Docket Number: Docket No. 67356
• Parties: Neil FAIGENBAUM, as guardian of the person of Anita Katz, M.I., Plaintiff-Appellee, v. OAKLAND MEDICAL CENTER, Defendant-Appellant. 143 Mich.App. 303, 373 N.W.2d 161

Page 161

373 N.W.2d 161

Neil FAIGENBAUM, as guardian of the person of Anita Katz M.I., Plaintiff-Appellee, v. OAKLAND MEDICAL CENTER, Defendant-Appellant.

Docket No. 67356.

143 Mich.App. 303, 373 N.W.2d 161

Court of Appeals of Michigan.

Submitted April 1, 1985.

Decided June 3, 1985.

Released for Publication Aug. 29, 1985.

Rehearing Denied Aug. 15, 1985.

[143 MICHAPP 305] Fieger & Fieger, P.C. (by Geoffrey N. Fieger), Southfield, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and James M. Batzey, Asst. Atty. Gen., for defendant-appellant.

Before BRONSON, P.J., and J.H. GILLIS and ALLEN, JJ.

ALLEN, Judge.

In this medical malpractice action defendant appeals as of right from a trial court's award of $1,000,000 in damages, $30,000 attorney fees, and $14,500 expert witness fees to plaintiff. The award followed a trial which commenced on May 17, 1982, and ended July 27, 1982.

FACTS

The action began when plaintiff sued 11 doctors, 2 hospitals and 3 drug companies in Wayne County Circuit Court. Suit against the drug companies was under a products liability theory and action against the other defendants was predicated on malpractice. Separately, plaintiff brought malpractice actions in the Court of Claims against Oakland Medical Center and Clinton Valley Center. Plaintiff's complaint and first amended complaint alleged in count III a breach of contract claim. Pursuant to the provisions of Sec. 6421 of the Revised Judicature Act, M.C.L. Sec. 600.6421; M.S.A. Sec. 27A.6421, the Court of Claims action was joined for trial with the suit in Wayne County Circuit Court.

Prior to trial the number of defendants was [143 MICHAPP 306] substantially reduced. Summary judgment was granted to Clinton Valley Center on all counts of plaintiff's complaint, and summary judgment was granted to Oakland Medical Center on plaintiff's count III breach of contract claim. Settlement was made with four doctors, two hospitals and three drug companies for $278,000. During trial, settlement was reached with two other named doctors for $100,000. The doctors who treated Anita Katz at Clinton Valley Center were dismissed from the suit either on grounds of governmental immunity, settlement, or directed verdict because of lack of evidence of responsibility for Anita Katz's care. Thus, at the close of plaintiff's proofs, plaintiff had received settlements totaling $378,000 and the principal remaining defendant was Oakland Medical Center on plaintiff's claim in tort.

At trial, the principal proofs concerned Anita Katz's suffering from tardive dyskinesia and the failure of the doctors and staff at the Oakland Medical Center to properly diagnose that condition and prescribe the proper treatment therefor. It was plaintiff's theory, supported by proofs at trial, that Anita Katz was not mentally ill when she was admitted to Clinton Valley Center and Oakland Medical Center but through a series of misdiagnoses was negligently administered drugs which only made her condition worse and which in fact were the cause of her illness in the first instance. Tardive dyskinesia is a movement disorder consisting of abnormal stereotyped movements of the mouth, face, limbs and tongue which occurs late in the course of neuroleptic drug treatment. Some of these manifestations are protrusion and rolling of the tongue, chewing movements, smacking and pouting of lips, opening and closing of mouth, puffing cheeks, grimacing, eye blinking, rocking movements, choreoathetoid movements of the [143 MICHAPP 307] limbs, swallowing and respiratory dyskinesia. Tardive dyskinesia is drug induced by neuroleptic drugs such as Thorazine, Mellaril, and Haldol. Similar abnormal twitching and body movements are found in persons suffering from Huntington's Chorea. However, that disease is not drug induced but is a degenerative disease in which the nerve cells in various parts of the brain decay, degenerate, and die.

Plaintiff's medical expert, Dr. Robert Sovner, testified that any psychiatrist or neurologist who sees an individual with abnormal choreo-athetoid movements and who has a history of exposure to neuroleptic drugs is required to consider tardive dyskinesia as a possible diagnosis. He further testified that after the onset of tardive dyskinesia, the continued prescription of neuroleptic drugs could either: (1) prevent physicians from knowing the severity of the disorder (mask it) or (2) convert a reversible case into an irreversible one. Drug therapy should be discontinued even where it is known the condition is irreversible.

Dr. Sovner reviewed Anita Katz's medical records and made an opinion about the care she received at Clinton Valley Center, where she was admitted November 20, 1976. He also saw videotapes of Anita Katz on February 9, 1979, and January 23, 1980. On both tapes, she showed tardive dyskinesia. He believed she had it during her stay at Clinton Valley Center. In her records, he was unable to find any differential diagnosis of tardive dyskinesia. This was so even though a social service summary indicated that Anita Katz had had Thorazine and shock therapy in the past. The doctors, having seen her movements and accounting for her drug history, should have diagnosed tardive dyskinesia. There was no evidence that anyone from either Oakland Medical Center [143 MICHAPP 308] or Clinton Valley Center considered tardive dyskinesia. This, he opined, was well below the standard of care. The doctors continued to give her neuroleptic drugs. This, too, was below the standard of care.

Sovner further testified that when Anita Katz was admitted to Clinton Valley Center she was suffering from tardive dyskinesia and Dr. Joseph Chandler, neurologist at Oakland Medical Center, diagnosed Anita Katz's condition as Huntington's Chorea and prescribed Haldol, a neuroleptic drug, for her. Sovner stated that Anita Katz never had Huntington's Chorea, that she never should have been given Haldol, and that the treatment she received at Clinton Valley contributed to the severity of her condition. In essence, plaintiff's proofs established a prima facie case that Anita Katz should have been treated for nonmental disorders.

In an opinion dated July 27, 1982, the trial judge ruled that Oakland Medical Center was not shielded by the cloak of governmental immunity merely because it was part of the Department of Mental Health. He felt that Dr. Chandler fell well below the standard of care in his consultation with plaintiff's ward, Anita Katz. The court concluded that Dr. Chandler had completely missed the diagnosis of tardive dyskinesia. He had a duty, the judge opined, to seek out Anita Katz's medical record, to take a drug history, and to be aware of the contents of the package inserts warning of tardive dyskinesia as a potential side effect accompanying Haldol. Anita Katz, he found, had tardive dyskinesia when she entered Clinton Valley in November, 1976.

A total sum of $1,000,000, the court ruled, would fairly and adequately compensate Katz for damages she suffered because of Dr. Chandler's deviation[143 MICHAPP 309] from the standard of care. On September 24, 1982, judgment was entered in the amount of $622,000, representing $1,000,000 in damages, less the $378,000 which plaintiff had received in settlements. Subsequently, orders were entered awarding attorney fees of $30,000, expert witness fees of $14,500, and $1,015 in other witness and service fees.

ISSUES

Six issues are raised on appeal, of which we find the first issue dispositive. ¹ Accordingly, our analysis is confined to that issue alone. Briefs on appeal were submitted in late fall 1984, well prior to the Supreme Court's December 28, 1984, decision in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). At that time controlling law on the question of governmental immunity for state operated mental and medical hospitals was found in Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978), and Perry v. Kalamazoo State Hospital, 404 Mich. 205, 273 N.W.2d 421 (1978). Under those decisions the operation of a mental hospital was a governmental function entitled to immunity while the operation of a general care hospital was not a governmental function and was not entitled to immunity.

Proofs at trial disclosed that although defendant Oakland Medical Center was under the jurisdiction of the Michigan Department of Mental Health and as such was a sub-unit of Clinton Valley [143 MICHAPP 310] Center, a recognized state mental hospital, it functioned as a general care medical hospital. As such it treated patients requiring special medical treatment, or surgical treatment and those who needed special diagnostic studies or who had medical or surgical problems, e.g., fractures, abdominal problems, cancers, pneumonias, etc. The referrals came from other agencies within the department, other state psychiatric hospitals, and other centers for the retarded. By 1978, a pattern of contractual services for medical-surgical care of mental patients by community-based hospitals was so widespread that Oakland Medical Center stopped receiving patients and went out of existence. After hearing the testimony, the respected trial court concluded that based upon how defendant Oakland Medical Center operated, viz.: as a general care medical facility with nonpsychiatrist medical doctors at its head, it more appropriately fell within the ambit of Parker, supra, and was not protected by governmental immunity. The parties' briefs, as initially submitted on appeal, focused on the factual basis developed at trial and, based on those facts, whether Oakland Medical Center's treatment of Anita Katz fell within the ambit of Parker.

Upon release of Ross, supra, it became obvious that new rules of immunity were adopted. Supplemental briefs were filed in March and April, 1985. Plaintiff's supplemental brief set forth three new issues: (1) Ross did not specifically overrule the Parker decision,...