Harrison v. City of Pontiac, Mich.

• Decision Date: 18 January 1961
• Docket Number: No. 14146.,14146.
• Citation: 285 F.2d 305
• Parties: Cecil J. HARRISON, Plaintiff-Appellant, v. CITY OF PONTIAC, MICH., Board of Trustees of Pontiac General Hospital, Medical Staff of Pontiac General Hospital, a voluntary unincorporated association, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

285 F.2d 305 (1961)

Cecil J. HARRISON, Plaintiff-Appellant, v. CITY OF PONTIAC, MICH., Board of Trustees of Pontiac General Hospital, Medical Staff of Pontiac General Hospital, a voluntary unincorporated association, Defendants-Appellees.

No. 14146.

United States Court of Appeals Sixth Circuit.

January 18, 1961.

Armand A. Palombo, Detroit, Mich., Hugh K. Davidson, Detroit, Mich., on brief, for appellant.

Harold B. Desenberg, Detroit, Mich., Moll, Desenberg, Purdy & Glover, Detroit, Mich., and William A. Ewart, Pontiac, Mich., on brief, for appellees.

Before SIMONS, Senior Circuit Judge, and CECIL and WEICK, Circuit Judges.

SIMONS, Senior Circuit Judge.

The appeal is from an order dismissing with prejudice an action brought by the plaintiff-appellant in the District Court with jurisdiction asserted because of diversity of citizenship. The plaintiff originally claimed damages against Dr. Neil Sullenberger, physician and surgeon, for surgical malpractice and from the defendants-appellees for negligent operation of Pontiac General Hospital. The case against Dr. Sullenberger having been settled and dismissed by stipulation and order, the appellant pursues his appeal against the remaining defendants below.

The complaint charges that Dr. Sullenberger was affiliated with Pontiac General Hospital and that the defendants, other than Dr. Sullenberger, operate the hospital in a proprietary capacity, deriving profit from its operation; that the defendant doctor, under the direction of the trustees and medical staff of the hospital undertook to diagnose, prescribe for and remedy the illness apparently suffered by the plaintiff and prescribed surgery therefor. This was performed on the plaintiff by Dr. Sullenberger as a consequence of which a sponge used in the course of the operation was left in the abdominal cavity of the patient and the incision having been sutured a second operation was needed to remove the sponge. Liability against the other defendants is apparently based on the theory of negligence, as owners and operators of the hospital. Subsequently, after two pre-trial sessions, a motion was jointly filed by the appellees asking dismissal of the action.

Both the original complaint and the motion to dismiss referred to the Pontiac City Ordinances and the purpose and manner of the operation of the hospital. There is permissive Michigan constitutional and legislative authority given to a municipality to own and operate hospitals. Pontiac General Hospital operates through a Board of Trustees, pursuant to such authority. Pontiac Ordinances provide for the Board's creation and specify its duties. The Board is directed to adopt such rules and regulations as may be necessary to control the collection and expenditure of funds. It is required to submit a budget every year to the City Commission for the operation of the hospital, including the sum appropriated and advanced, not to exceed $75,000.00 per year, from the general funds of the city. It is directed to adjust the schedule of charges made for hospital services so as to reflect all costs but is forbidden to reduce charges in effect for nonresidents. The hospital is run by a Hospital Director who is responsible to the trustees and neither the Board nor...