Vargo v. Sauer

• Decision Date: 09 February 1996
• Docket Number: Docket No. 165179
• Citation: 215 Mich.App. 389,547 N.W.2d 40
• Parties: , 109 Ed. Law Rep. 378 Lois VARGO, personal representative of the estate of Janet Vargo, deceased, Plaintiff-Appellant, v. Harold SAUER, M.D., Defendant-Appellee, and Sisters of Mercy Health Care Corporation, d/b/a St. Lawrence Hospital; James Rawlinson, M.D.; C.P. Makhoul, D.O.; and B. Landess, C.R.N.A., Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 40

547 N.W.2d 40

215 Mich.App. 389, 109 Ed. Law Rep. 378

Lois VARGO, personal representative of the estate of Janet Vargo, deceased, Plaintiff-Appellant, v. Harold SAUER, M.D., Defendant-Appellee and Sisters of Mercy Health Care Corporation, d/b/a St. Lawrence Hospital; James Rawlinson, M.D.; C.P. Makhoul D.O.; and B. Landess, C.R.N.A., Defendants.

Docket No. 165179.

Court of Appeals of Michigan.

Submitted April 6, 1995, at Lansing.

Decided Feb. 9, 1996, at 9:00 a.m.

Released for Publication April 29, 1996.

Thurswell, Chayet & Weiner by Kevin J. Cox and Tammy J. Reiss, Southfield, for plaintiff.

Fraser Trebilcock Davis & Foster, P.C. by Brett J. Bean and Kathleen E. Kane, Lansing, for Harold Sauer.

Before CORRIGAN, P.J., and MARKEY and ERNST, ^* JJ.

MARKEY, Judge.

Plaintiff appeals as of right from the trial court's order summarily dismissing defendant Harold Sauer, M.D., from this medical malpractice action on the basis of the governmental immunity privilege set forth in M.C.L. § 691.1407(2); M.S.A. § 3.996(107)(2). We affirm.

Sauer is an obstetrician, gynecologist, and teacher employed by the Michigan State University College of Human Medicine as an associate professor in the Department of Obstetrics, Gynecology, and Reproductive Biology. In this capacity, Sauer is compensated entirely by MSU, he teaches medical students and residents, he provides clinical care at the MSU Clinical Center, and he provides inpatient medical care at St. Lawrence Hospital in conjunction with the MSU/St. Lawrence Hospital Family Practice Residency Program. In July 1990, plaintiff's decedent, Janet Vargo, then pregnant, went to St. Lawrence Hospital complaining of shortness of breath and a pain in her chest. That evening, after physicians and residents examined Vargo, defendant Dr. James Rawlinson consulted with defendant Sauer, who determined that the fetus was in distress and recommended an emergency Caesarean section delivery. The delivery was successful and Vargo gave birth to a healthy boy; soon thereafter, however, Janet Vargo suffered heart failure, lapsed into a coma, and died.

Sauer filed his motion for summary disposition pursuant to MCR 2.116(C)(7) and (8). According to Sauer, he participated in Janet Vargo's care as part of his employment with MSU and his responsibility to teach MSU residents, so he is immune from tort liability except with respect to gross negligence. M.C.L. § 691.1407; M.S.A. § 3.996(107). Also, Sauer asserted that plaintiff's allegations of gross negligence failed to establish conduct so reckless as to show a substantial lack of concern for whether an injury resulted, M.C.L. § 691.1407(2)(c); M.S.A. § 3.996(107)(2)(c), and, therefore, plaintiff failed to state a claim upon which relief could be granted. The trial court reluctantly granted Sauer's motion for summary disposition upon finding that Sauer was a governmental employee. That finding was based on the fact that he worked for MSU and was acting within the scope of his employment when he examined and operated on Janet Vargo because residents under Sauer's tutelage were involved in this case and, as part of his employment, Sauer must maintain his medical skills as well as teach residents. The court also found that because plaintiff failed to allege facts amounting to gross negligence and no proprietary function was involved, Sauer was entitled to summary disposition pursuant to MCR 2.116(C)(10). ¹ Plaintiff appeals, and we affirm.

I

For the first time, plaintiff challenges the constitutionality of § 7 of the governmental tort liability act, M.C.L. § 691.1407; M.S.A. § 3.996(107), claiming that it violates equal protection guarantees because it fails to treat all university-employed physicians in Michigan in a like manner with respect to governmental immunity. Issues raised for the first time on appeal, including constitutional challenges, are not ordinarily subject to appellate review. Michigan Up & Out Of Poverty Now Coalition v. Michigan, 210 Mich.App. 162, 167, 533 N.W.2d 339 (1995). However, because plaintiff raises an issue of first impression in Michigan, we will address this issue.

Sections 7(2) and 7(4) of the governmental tort liability act delineate who is entitled to receive governmental immunity from tort liability and what hospitals are excepted from this grant of immunity, respectively:

(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 created task force of a governmental agency shall be immune from tort liability for injuries to persons or damages to property caused by the officer, employee, or member while in the course of employment or service or volunteer while acting on behalf of a governmental agency if all of the following are met:

(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a governmental function.

(c) The officer's, employee's, member's, or volunteer's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, "gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.

* * * * * *

(4) This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility. [M.C.L. § 691.1407(2), (4); M.S.A. § 3.996(107)(2), (4).]

Statutes are presumably constitutional and should be so construed unless their unconstitutionality is clearly apparent. Caterpillar, Inc. v. Dep't of Treasury, 440 Mich. 400, 413, 488 N.W.2d 182 (1992); Michigan Soft Drink Ass'n v. Dep't of Treasury, 206 Mich.App. 392, 401, 522 N.W.2d 643 (1994). Every reasonable presumption must be viewed in favor of constitutionality. Petrus v. Dickinson Co. Bd. of Comm'rs, 184 Mich.App. 282, 293, 457 N.W.2d 359 (1990). Under the state and federal constitutions, the Equal Protection Clause requires that persons in similar circumstances be treated alike. U.S. Const., Am XIV; Const. 1963, art. 1, § 2; Frame v. Nehls, 208 Mich.App. 412, 415, 528 N.W.2d 773 (1995). The type of classification and the nature of the interest affected will determine, however, the level of scrutiny that this Court must apply in evaluating plaintiff's equal protection challenge. Id. Because the statute does not create suspect classifications or impinge upon the exercise of fundamental rights, which would subject the statute to strict or intermediate scrutiny under the Equal Protection Clause of the Michigan or the United States Constitution, we must apply a rational basis test to the immunity statute. Doe v. Dep't of Social Services, 439 Mich. 650, 662, 487 N.W.2d 166 (1992). We will uphold the statute as constitutional as long as the classification is rationally related to a legitimate governmental purpose. Id.; Feaster v. Portage Public Schools, 210 Mich.App. 643, 651, 534 N.W.2d 242 (1995). The constitution " 'is offended only if the classification rests on grounds wholly irrelevant to the achievement of the [legislative] objective.' " Bissell v. Kommareddi, 202 Mich.App. 578, 580, 509 N.W.2d 542 (1993), quoting McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 1104-1105, 6 L.Ed.2d 393 (1961).

At the outset, we recognize that judicial construction of a statute is neither necessary nor permitted where the statutory language is clear and unambiguous. Skybolt Partnership v. City of Flint, 205 Mich.App. 597, 602, 517 N.W.2d 838 (1994). The Legislature is also presumed to intend the meaning plainly expressed in a statute. Id. Further, while the grant of governmental immunity is broad, any exceptions to that grant of immunity are narrowly construed. Wade v. Dep't of Corrections, 439 Mich. 158, 166, 483 N.W.2d 26 (1992).

With regard to the public hospital exception to governmental immunity contained in § 7(4), we believe that the statutory language is clear: those employees of a hospital owned or operated by a governmental agency are excepted from the broad grant of immunity bestowed on other governmental employees in § 7(2). St. Lawrence Hospital is not owned or operated by MSU; consequently, the equally unambiguous grant of immunity in § 7(2) applies to Sauer, as long as Sauer satisfies the three requirements set forth in subsections 7(2)(a), (b), and (c).

Plaintiff argues that the statute creates two classes of state university-employed physicians and treats them in a disparate fashion. According to plaintiff, under § 7(4), University of Michigan (U of M) physicians teaching and working at the University of Michigan Hospital are not entitled to immunity for medical malpractice, while Michigan State University (MSU) physicians teaching and working at private hospitals (in the absence of a university-run hospital offering inpatient, overnight care) are immune from tort liability. We agree that teaching physicians employed by U of M and MSU are both serving the same governmental function: teaching the human sciences to medical students, as authorized by their respective enabling statutes. ² Nothing in the legislative analysis of 1986 P.A. 175, which enacted the hospital exception to governmental immunity in § 7(4), explains the rationale behind this exception. This Court has stated that § 7(4) was adopted to rectify the inequity noted in Hyde v. Univ. of Michigan Bd. of Regents, 426 Mich. 223, 244-246, 393 N.W.2d 847 (1986), i.e., that persons injured by identical conduct in public and private facilities had different rights of recovery. Jamieson v....