Jackson v. County of Saginaw
| Decision Date | 01 July 1998 |
| Docket Number | No. 3,Docket No. 106498,3 |
| Parties | Johnny JACKSON, Plaintiff-Appellee, v. COUNTY OF SAGINAW, Thomas McIntyre, Individually and in his capacity as Sheriff of Saginaw County, Richard Roe and Jane Doe, Defendants-Appellants. Calendar |
| Court | Michigan Supreme Court |
Jensen, Gilbert, Smith & Borrello, P.C. by Peter C. Jensen, Saginaw, for defendants-appellants.
In this case we are called on to address whether summary disposition was appropriately granted in favor of the sole remaining defendant under MCR 2.116(C)(7) and MCR 2.116(C)(10). 1 We find that reasonable minds could not differ in concluding that the evidence, when viewed in a light most favorable to the plaintiff, does not raise a question whether the individual defendant, Vincent Uy, M.D., a government employee, was grossly negligent as required for liability under § 7 of the governmental tort liability act (GTLA), M.C.L. § 691.1407; M.S.A. § 3.996(107). Accordingly, we find that the trial court did not err in granting summary disposition in favor of Dr. Uy, and reverse the holding of the Court of Appeals to the contrary.
In reviewing a grant of summary disposition, an appellate court must view the evidence in the light most favorable to the nonmoving party, and make all legitimate inferences in favor of the nonmoving party. Skinner v. Square D Co., 445 Mich. 153, 516 N.W.2d 475 (1994). Our review has found the Court of Appeals summary of the facts to be accurate, and we therefore adopt that summary:
In December 1990, plaintiff was incarcerated in the Saginaw County jail, and in January 1991 began to experience throat and ear pain. Plaintiff was examined in the jail infirmary on several occasions between January 1991 and May 1991, at which time he was referred to a specialist. Plaintiff was thereafter diagnosed with throat cancer and his larynx was surgically removed.
Plaintiff brought this two-count complaint: Count I alleged violations of "due process, equal protection and [the] prohibition against cruel and unusual punishment as guaranteed by the Michigan Constitution"; and Count II alleged, in the alternative, that defendants had been grossly negligent in denying him adequate medical care. Specifically, plaintiff alleged that defendants had delayed in providing him with specialized care despite his recurrent symptoms of throat and ear pain and hoarseness. Plaintiff further alleged that the treatment delay had proximately caused him pain and suffering, exacerbation of his cancerous condition, and a shortening of his life span. In their answer, defendants asserted general denials of negligence or gross negligence and also asserted the affirmative defense of governmental immunity.
Following some discovery, defendants moved for summary disposition. MCR 2.116(C)(7) [governmental immunity], (C)(10) [no genuine issue of material fact]. Defendants supported their motion with affidavits of the treating physician, Vincent Uy, M.D., and the supervisory nurse at the jail, Amy Valerio, R.N. The following chronology of events is drawn from these affidavits and the subsequent deposition of Dr. Uy:
1/11/91 Plaintiff was first seen by a jail nurse in the infirmary, complaining of throat and ear pain.
1/16/91 Plaintiff was seen a second time by a nurse, again complaining of throat and ear pain. The symptoms were "not serious," and plaintiff did not request to see a physician.
3/24/91 Plaintiff was seen again in the infirmary, complaining of recurrent throat and ear pain. The attending nurse scheduled an appointment for plaintiff to be seen by jail physician, Vincent Uy, M.D.
3/28/91 Dr. Uy examined plaintiff's throat with a tongue depressor, finding it to be red, inflamed, and infected. He prescribed an antibiotic and had a throat culture performed. He found no evidence of tumors or cancerous growth.
4/23/91 Dr. Uy again examined plaintiff, finding his throat still to be infected. Dr. Uy prescribed a stronger antibiotic and had a second throat culture performed. No evidence of tumors or cancerous growth was detected.
5/9/91 Plaintiff complained that his symptoms had recurred. Because plaintiff stated that the earlier antibiotic treatment had been temporarily successful, Dr. Uy prescribed another antibiotic. No evidence of tumors or cancerous growth was detected.
5/21/91 Plaintiff complained again of a sore throat and now hoarseness. Dr. Uy referred plaintiff to an ear, nose, and throat specialist.
In his answer to defendants' summary disposition motion, plaintiff averred in an affidavit that, contrary to defendants' averments, he had continually complained about his medical condition "each and every month" between January 1991 and his release in July 1991. To corroborate this claim, plaintiff relied on the deposition testimony of Perri Payne, plaintiff's former cellmate, who testified that plaintiff continually complained about his medical condition. Payne further testified that at times plaintiff sought the attention of the guards by shaking the cell bars and requesting to be sent to the hospital.
Plaintiff's averments in his affidavit, and the deposition testimony of two treating physicians, are summarized as follows:
6/17/91 Plaintiff was seen by Robert Borenitsch, D.O., an ear, nose, and throat specialist. Given plaintiff's medical history of "progressive hoarseness" since December 1990 and the fact that he was a heavy smoker and drinker, Dr. Borenitsch immediately suspected a serious problem such as cancer, even before examining plaintiff. Dr. Borenitsch performed a laryngoscopy, revealing lesions on plaintiff's right vocal cord which Dr. Borenitsch believed to be a malignancy.
6/21/91 Dr. Borenitsch performed another laryngoscopy in conjunction with a biopsy. The biopsy confirmed the diagnosis of cancer.
6/26/91 Dr. Borenitsch informed plaintiff of the diagnosis and referred him to an otolaryngologist for surgery.
Dr. Borenitsch eventually referred plaintiff to another otolaryngologist, Ramon Esclamado, M.D., who specialized in head and neck surgery.
7/19/91 Dr. Esclamado examined plaintiff, who indicated a history of throat pain for seven months and ear pain for six months as well as being a heavy smoker and drinker. Dr. Esclamado initially suspected squamous carcinoma.
7/22/91 A tracheotomy was performed because the tumor was obstructing plaintiff's airway.
10/8/91 After experimental chemotherapy treatment was unsuccessful in shrinking the tumor, a total laryngectomy was performed, removing plaintiff's voice box.
After hearing arguments of counsel, the trial court granted summary disposition in favor of all defendants on the basis of governmental immunity. [Unpublished opinion per curiam, issued May 10, 1996 (Docket No. 182564), slip op. at 1-3.]
On appeal by the plaintiff, the Court of Appeals affirmed summary disposition in favor of the defendants on the deliberate indifference claims, and the gross negligence claims against the county, the sheriff, and nurse Valerio, but reversed the grant of summary disposition in favor of Dr. Uy, finding that "reasonable minds could differ as to whether his conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted." 2 Id. at 6. We granted defendant's 3 application for leave to appeal, 456 Mich. 877, 570 N.W.2d 782 (1997), and now reverse the decision of the Court of Appeals regarding Dr. Uy.
As we have observed, the plaintiff, as the nonmoving party, is entitled to have the facts viewed in the light most favorable to him, and to all legitimate inferences therefrom in his favor. Skinner, supra; Moll v. Abbott Laboratories, 444 Mich. 1, 27, n. 36, 506 N.W.2d 816 (1993). We review this question of law de novo. Cardinal Mooney High School v. Michigan High School Athletic Ass'n, 437 Mich. 75, 80, 467 N.W.2d 21 (1991). Defendant 4 claims error in the finding of the Court of Appeals that summary disposition in regard to him was inappropriate on the basis of a finding that reasonable minds could differ with regard to whether his conduct amounted to gross negligence.
The Court of Appeals in the past has held that "[g]enerally, once a standard of conduct is established, the reasonableness of an actor's conduct under the standard is a question for the factfinder, not the court." Tallman v. Markstrom, 180 Mich.App. 141, 144, 446 N.W.2d 618 (1989). "However, if, on the basis of the evidence presented, reasonable minds could not differ, then the motion for summary disposition should be granted." Vermilya v. Dunham, 195 Mich.App. 79, 83, 489 N.W.2d 496 (1992). The Court of Appeals cited both these cases in its analysis, and we agree that these established precedents form the boundaries of our review. Accordingly, our task is to review the facts, in the light most favorable to the plaintiff, and determine the appropriateness of summary disposition in favor of the defendant. 5
Plaintiff's complaint characterized defendant as a jail employee. 6 Plaintiff's claim of gross negligence against this employee is accordingly governed by § 7 of the GTLA, M.C.L. § 691.1407; M.S.A. § 3.996(107), which provides 7:
(1) Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
(2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily...
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