Pleznac v. Griva, Docket No. 77-3420

CourtCourt of Appeal of Michigan (US)
Citation272 N.W.2d 712,86 Mich.App. 528
Docket NumberDocket No. 77-3420
PartiesDaniel Jon PLEZNAC, a minor, by his next friend, James Pleznac, and James Pleznac, Individually, Plaintiffs-Appellants, v. Sylvia GRIVA, Frank J. Malje, and Peoples Community Hospital Authority, a Michigan Corp., jointly and severally, Defendants-Appellees.
Decision Date17 October 1978

Page 712

272 N.W.2d 712
86 Mich.App. 528
Daniel Jon PLEZNAC, a minor, by his next friend, James
Pleznac, and James Pleznac, Individually,
Sylvia GRIVA, Frank J. Malje, and Peoples Community Hospital
Authority, a Michigan Corp., jointly and
severally, Defendants-Appellees.
Docket No. 77-3420.
Court of Appeals of Michigan.
Oct. 17, 1978.
Released for Publication Jan. 3, 1979.

Page 713

[86 Mich.App. 529] Maile & Leach by Randall Winston, Detroit, for plaintiffs-appellants.

David R. Getto, Detroit, for Griva and Malje.

John M. Heaphy, Detroit, for Peoples Hospital.

Before D. E. HOLBROOK, P. J., and V. J. BRENNAN and CAVANAGH, JJ.

D. E. HOLBROOK, Presiding Judge.

Plaintiffs appeal the trial court's order denying a motion to set aside a stipulation and order of dismissal as to defendant Peoples Community Hospital Authority. Plaintiffs' original complaint in this medical malpractice action was filed August 15, 1968. It is alleged that [86 Mich.App. 530] Peoples Hospital and the individual defendants negligently administered excessive quantities of oxygen to the minor plaintiff postnatally for a period of approximately one month following his premature birth October 11, 1967, resulting in a condition diagnosed as retrolental fibroplasia which rendered said minor plaintiff totally and permanently blind.

On December 8, 1968, defendant Peoples Hospital filed a motion for dismissal, improperly denominated a motion for summary judgment, alleging governmental immunity. 1 This motion was never acted upon, however, on March 7, 1969, a stipulation of dismissal as to defendant Peoples Hospital only, signed by all parties, was filed. In pursuance thereof, the circuit court filed an order dismissing the action as to Peoples Hospital, with prejudice.

Early in 1973, plaintiffs filed a motion to set aside the above stipulation and to add Peoples Hospital as a party defendant. Plaintiffs alleged that "there was no inquiry at the time of the Order of Dismissal as to the best interests of the Plaintiff minor". This motion was granted, only to be set aside for lack of notice to defendant Peoples and by entry of accelerated judgment based upon the stipulation and order of dismissal. As the order setting aside plaintiffs' motion was without prejudice, plaintiffs filed an identical motion in December of 1973. On January 31, 1975, the trial judge filed an order denying plaintiffs' motion.

Plaintiffs' attempted appeal of this denial in February of 1975 was not allowed as the trial court's decision was not a final judgment. Plaintiffs thereupon renewed their motion to set aside the [86 Mich.App. 531] stipulation and dismissal of Peoples Hospital on April 28, 1977. This motion was denied on July 7, 1977, rendering it a final judgment as to Peoples Hospital, which the plaintiffs now appeal.

The plaintiffs' tenacity in seeking to have the 1969 stipulation and resulting dismissal of Peoples Hospital set aside stems from several more recent Michigan Supreme Court decisions which have considerably narrowed the doctrine of governmental immunity. As noted in defendant-appellee's brief:

"The motion (for summary judgment filed in 1969) asked for a judgment of dismissal in favor of Peoples and against Pleznac for the reason that at all times material thereto, Peoples, pursuant to statutes of the State of Michigan and specific decisions of the Michigan Supreme Court, had been determined to be a State agency, and thereby entitled to avail itself of the governmental immunity defense."

Page 714

"(A)pparently counsel (for each of the parties) were of the opinion that the Motion for Summary Judgment was well-founded, and a Stipulation of Dismissal * * * was executed."

"(This stipulation was) a stipulation and an order wherein All parties to the lawsuit represented by counsel agreed that as a matter of law Peoples could not be sued for the injuries sustained by the plaintiff ".

(Emphasis added.)

Plaintiffs seek to set aside the stipulation and order of dismissal on the claim that the subsequent abrogation of governmental immunity retroactively rendered Peoples Hospital amenable to suit.

On appeal, plaintiffs suggest that the line of cases requiring that the trial court determine [86 Mich.App. 532] whether a proposed compromise or settlement is in the best interests of a minor plaintiff, should be extended to include the instant stipulation to dismiss. See Dudex v. Sterling Brick Co., 237 Mich. 470, 212 N.W. 92 (1927); Palazzolo v. Judge of Superior Court of Grand Rapids, 234 Mich. 547, 549, 208 N.W. 677 (1926), and Centala v. Navrude, 30 Mich.App. 30, 32-33, 186 N.W.2d 35 (1971). In such case, the court's dismissal in reliance upon the stipulation but without a hearing to...

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