Tobias v. Phelps

• Decision Date: 17 December 1986
• Docket Number: Docket No. 78233
• Citation: 144 Mich.App. 272,375 N.W.2d 365
• Parties: Stuart TOBIAS, Personal Representative of the Estate of Rogene Weir, Deceased, Plaintiff-Appellant Cross-Appellee, v. Dr. Shirley J. PHELPS, M.D., Defendant-Appellee Cross-Appellant, and Dr. Douglas A. Devens, M.D. jointly and severally, Defendant-Appellee. 144 Mich.App. 272, 375 N.W.2d 365
• Court: Court of Appeal of Michigan — District of US

Page 365

375 N.W.2d 365

Stuart TOBIAS, Personal Representative of the Estate of Rogene Weir, Deceased, Plaintiff-Appellant Cross-Appellee, v. Dr. Shirley J. PHELPS, M.D., Defendant-Appellee

Cross-Appellant,

and

Dr. Douglas A. Devens, M.D. jointly and severally,

Defendant-Appellee.

Docket No. 78233.

144 Mich.App. 272, 375 N.W.2d 365

Court of Appeals of Michigan.

Submitted April 10, 1985.

Decided July 15, 1985.

Released for Publication Oct. 30, 1985.

Leave to Appeal Denied December 17, 1986.

[144 MICHAPP 275] Charfoos, Christensen & Archer, P.C. by Adrienne G. Southgate, Detroit, for plaintiff.

Taub, Still, Nemier & Winter, P.C. by Craig L. Nemier and Donald J. Trybus, Detroit, for Shirley J. Phelps.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Patrick J. Devlin, Asst. Atty. Gen., for Douglas A. Devens.

Before R.B. BURNS, P.J., and SHEPHERD and B.A. JASPER ^*, JJ.

SHEPHERD, Judge.

Plaintiff appeals as of right from the dismissal of his medical malpractice claim against defendants, Dr. Shirley J. Phelps and Dr. Douglas A. Devens. The trial court held that plaintiff had failed to plead facts in avoidance of governmental immunity. GCR 1963, 117.2(1). We reverse this decision in part, and remand for further proceedings. Defendant Phelps cross-appeals from the trial court's denial of defendants' motion for summary judgment as to plaintiff's civil rights claim, brought under 42 U.S.C. 1983, that defendants violated the decedent's constitutional rights by their failure to provide necessary medical care. We affirm this decision.

A motion for summary judgment under GCR 1963, 117.2(1) tests the legal basis of the complaint, not the plaintiff's ability to prove his allegations. We must rely on the pleadings alone and [144 MICHAPP 276] accept as true all well-pleaded facts, along with any inferences or conclusions which may fairly be drawn from those facts. We will not affirm the Plaintiff alleges that the decedent, Rogene Weir, was committed to the Ypsilanti Forensic Center on October 17, 1981. Defendants are physicians who act as 'agents, servants and/or employees "of the Michigan Department of Mental Health and the Ypsilanti Forensic Center. Several months after her commitment to the center, the decedent "was being weaned off her asthma medications in order to undergo a surgical procedure." Weir "began experiencing increasing difficulty with her asthmatic condition and began to beg" defendants and other staff members for her asthma medications. Her condition worsened. On the morning of March 12, 1981, Weir was sent to one of the "quiet rooms" in the center as punishment for failing to dress. The staff found her dead in the room "within an hour".

grant, or reverse the denial, of a motion for summary judgment unless plaintiff's claim is so clearly unenforceable as a matter of law that no factual development could possibly furnish a basis for recovery. Abel v. Eli Lilly & Co., 418 Mich. 311, 323-324, 343 N.W.2d 164 (1984); Findling v. TP Operating Co, 139 Mich.App. 30, 34, 361 N.W.2d 376 (1984); Blake v. Consolidated Rail Corp, 129 Mich.App. 535, 543, 342 N.W.2d 599 (1983).

In Count I of the complaint, plaintiff asserted that the decedent had been deprived of her constitutional right to receive medical treatment during her commitment and that her death resulted from this deprivation. According to plaintiff, the "decedent's condition was so obvious and severe as to render proper medical attention essential for the preservation of her health and life", defendants "ignored" the decedent's serious condition, and [144 MICHAPP 277] defendants had not "related to or explained [decedent's condition] to the staff members" of the facility.

In Count II, plaintiff set forth a claim of professional negligence or malpractice. Plaintiff alleged that defendants breached the applicable standard of care in the following ways:

"(a) Weaning Plaintiff's decedent off her asthma medication without providing any substitute therapy to relieve the aggravated symptoms of that condition;

"(b) Failing to properly monitor Plaintiff's decedent's condition while she was being weaned from her asthma medication;

"(c) Failing to properly instruct the staff members of THE YPSILANTI FORENSIC CENTER concerning Plaintiff's decedent's condition."

We review the trial court's decision on these claims in the order of their appearance in the complaint.

DEPRIVATION OF CONSTITUTIONAL RIGHT TO TREATMENT FOR SERIOUS

MEDICAL NEED

In order to state a claim under 42 U.S.C. 1983 for deprivation of medical treatment, the plaintiff "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs". Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Mosqueda v. Macomb County Youth Home, 132 Mich.App. 462, 473, 349 N.W.2d 185 (1984). Allegations of negligence or medical malpractice are insufficient. Estelle v. Gamble, supra. A medical need is serious if it is one that has been diagnosed by a physician as requiring treatment or it is so obvious that even a layperson would recognize the necessity of medical attention. Rushing v. Wayne County, 138 Mich.App. [144 MICHAPP 278] 121, 146, 358 N.W.2d 904 (1984). To have acted with "deliberate indifference", defendants must have either intentionally denied or unreasonably delayed treatment of a discomfort-causing ailment or wilfully failed to provide prescribed treatment without medical justification. Brewer v. Perrin, 132 Mich.App. 520, 530, 349 N.W.2d 198 (1984). In Westlake v. Lucas, 537 F.2d 857, 861 (CA 6, 1976), the court held sufficient to withstand a motion for dismissal plaintiff's allegations "that he was forced to endure a period of intense discomfort because his pleas for medical assistance went unheeded".

See, Mosqueda, supra, 132 Mich.App. p. 472, 349 N.W.2d 185.

Defendant Phelps argues that, in essence, Count I of the complaint contains allegations of mere negligence or malpractice. We agree that the initial decision to wean the decedent from asthma medications was, at most, a mistaken exercise of medical judgment which cannot give rise to liability under 42 U.S.C. 1983. However, plaintiff bases his claim on events which occurred after that decision was made. We agree with the trial court that the allegations in the complaint, if true, indicate deliberate indifference to decedent's serious medical needs after that initial decision was made. If we believe plaintiff, the decedent was in dire need of medication, defendants were aware of this need, yet defendants ignored the decedent's complaints and failed to inform the staff of decedent's serious condition. The initial decision to cease providing the medication to the decedent was part of a course of medical treatment preparatory to surgery and cannot support a finding of "deliberate indifference". Estelle v. Gamble, supra. Nevertheless, it indicates that defendants must have been aware of decedent's asthmatic condition. If plaintiff's allegations are true, defendants turned their backs on the decedent during the process of weaning[144 MICHAPP 279] her from the medication. This claim is not so clearly unenforceable that no factual development could support a judgment for plaintiff.

NEGLIGENCE

The trial court held that plaintiff failed to plead facts in avoidance of governmental immunity. Unlike the trial court, we now have the benefit of the Supreme Court's opinion in Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), "a much needed and generally anticipated clarifying opinion" which applies "to all cases on appeal at the time it was decided, and to all future cases". Faigenbaum v. Oakland Medical Center, 143 Mich.App. 303, --- 373 N.W.2d 161 (1985). To the extent that our application of the principles enunciated in Ross, supra, dictates a different result than that reached by the trial court, we cannot say that the trial court "erred" at all. The pre-Ross case law was, as the Supreme Court admitted in Ross, supra, 420 Mich. p. 596, 363 N.W.2d 641, "confused, often irreconcilable, and of little guidance to the bench and bar".

Under Ross, supra, pp. 633-634, 363 N.W.2d 641, defendants are immune from liability for negligent acts or omissions if they were:

"1) acting during the course of their employment and acting, or reasonably believe[d] they [were] acting, within the scope of their authority;

"2) acting in good faith; and

"3) performing discretionary, as opposed to ministerial acts." (Footnote omitted.)

Plaintiff alleges that defendants were employed by the Department of Mental Health at the Ypsilanti Forensic Center and that they owed a duty to the decedent. These allegations establish that defendants[144 MICHAPP 280] were acting during the course of their employment and acting, or reasonably believed they were acting, within the scope of their authority.

Were the acts complained of ministerial or were they discretionary? In Ross, supra, pp. 634-635, 363 N.W.2d 641, the Supreme Court explained the distinction as follows:

" 'Ministerial' acts have been defined as those which constitute merely an obedience to orders or the performance of a duty in which the individual has little or no choice. * * * We believe that this definition is not sufficiently broad. An individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a notorious manner. In a nutshell, the distinction between 'discretionary' and 'ministerial' acts is that the former involves significant "Many individuals are given some measure of discretionary authority in order to...