Snow v. Freeman

• Decision Date: 14 August 1974
• Docket Number: No. 1,Docket No. 18557,1
• Citation: 222 N.W.2d 43,55 Mich.App. 84
• Parties: Rosemary SNOW, Administratrix of the Estate of Bobby Gene Snow, Deceased, Plaintiff-Appellant, v. Dr. Richard FREEMAN et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 43

222 N.W.2d 43

55 Mich.App. 84

Rosemary SNOW, Administratrix of the Estate of Bobby Gene

Snow, Deceased, Plaintiff-Appellant, v. Dr. Richard FREEMAN et al., Defendants-Appellees.

Docket No. 18557.

Court of Appeals of Michigan, Division No. 1.

Aug. 14, 1974.

Released for Publication Oct. 9, 1974.

Michael A. Gantz, Lopatin, Miller, Bindes & Freedman, Detroit, for plaintiff-appellant.

Daniel J. Andrews, Dearborn, for D. Parras and Outer Drive Hospital.

Robert E. Sullivan, Detroit, for Dr. Freeman.

Before V. J. BRENNAN, P.J., and R. B. BURNS and SMITH,* JJ.

V. J. BRENNAN, Presiding Judge.

Plaintiff appeals an accelerated judgment of dismissal in favor of defendant Outer Drive Hospital granted by the Honorable Thomas J. Brennan in the Circuit Court for the County of Wayne.

This action was instituted by the administratrix of the estate of Bobby Gene Snow, deceased. The complaint alleged malpractice against the defendant hospital and two physicians.

Outer Drive Hospital is owned and operated by the People's Community Hospital Authority. Defendant hospital moved the trial court for a summary and/or accelerated judgment on the basis that as a governmental unit, it is immune from plaintiff's claims against it.

On September 24, 1973, the trial court issued its opinion granting defendant Outer Drive Hospital an accelerated judgment based on governmental immunity. An order of accelerated judgment of dismissal was entered on October 11, 1973. From this judgment plaintiff appeals.

The issue herein presented is whether a municipally-owned hospital is immune from suits against it for acts constituting malpractice? In Kriger v. South Oakland County Mutual Aid Pact, 49 Mich.App. 7, 211 N.W.2d 228 (1973), this Court stated that withholding a legal remedy from persons injured by the state, while granting one to persons injured by nongovernmental tort-feasors, does not offend the Equal Protection Clause. Equal protection of the laws is not denied by a course of procedure which is applied to legal proceedings in which a particular person is affected, and such a course would also be applied to any other person in the state under similar circumstances and conditions. States have the power to enact laws which affect some groups of citizens differently from others, and one who has assailed the classification in the statute on the ground that it violates equal protection has the burden of showing that the classification has no reasonable basis. Withholding a legal remedy from persons injured by the state, while granting one to persons injured by nongovernmental tort-feasors, does not offend the Equal Protection Clause. Kriger, supra.

Plaintiff also contends that the governmental immunity statute is unconstitutional and violative of due process as a deprivation of a property right without just compensation. In McNees v. Scholley, 46 Mich.App. 702, 208 N.W.2d 643 (1973), this Court declined to hold governmental immunity unconstitutional because of the many cases in Michigan upholding the principle of governmental immunity. We concur. The constitutional provision of due process extends to protect that 'property' construed to be a Vested right, and generally an Accrued right of action is a vested property right which may not be arbitrarily impinged. (Michigan Const.1963, art. I, § 17). Grubaugh v. City of St. Johns, 384 Mich. 165, 180 N.W.2d 778 (1970). For a right to be considered a vested right 'it must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another.' Minty v. Board of State Auditors, 336 Mich. 370, 390, 58 N.W.2d 106, 112 (1953), quoting from 2 Cooley's Constitutional Limitations (8th Ed.), p. 749. See Campbell v. City of Detroit, 51 Mich.App. 34, 214 N.W.2d 337 (1973).

In judging plaintiff's cause of action, it must be asked whether it is an accrued vested right. In the cases cited above, the repeal of a statute subsequent to the date of injury could not deny plaintiff his right to enforce a cause of action. In the instant case plaintiff never had a cause of action which was an accrued right which subsequently could be denied, resulting in a deprivation of property. It seems clear that the instant case is distinguishable from the cases cited above.

Plaintiff cites Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 178 N.W.2d 476 (1970), for the proposition that malpractice in the instant case should be aligned with nuisance. As a nuisance, the state could not have the defense of immunity. The Buckeye case is distinguishable on the facts from the instant case since there a nuisance existed which the state failed to abate. However, the case at bar seems to be an action in the nature of malpractice. There seems to exist no authority for the proposition that malpractice is synonymous with nuisance.

The controlling statute states:

'Except as in this act otherwise provided, 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.' M.C.L.A. § 691.1407; M.S.A. § 3.996(107).

Plaintiff's final contention is that the operation of a municipally-owned hospital providing medical service for a fee constitutes a proprietary as opposed to a governmental function. In Pichette v. Manistique Public Schools, 50 Mich.App. 770, 777--778, 213 N.W.2d 784 (1973),...