Opinion
Docket No. 115525.
Decided May 20, 1991, at 9:25 A.M.
Bockoff, Zamler, Mellen Shiffman, P.C. (by Gregory M. Bereznoff), for the plaintiff.
Laurel F. McGiffert, for the defendant on appeal.
Before: GRIBBS, P.J., and MacKENZIE and JANSEN, JJ.
Defendants appeal by leave granted from that portion of an order denying their motion for summary disposition of plaintiff's gross negligence claim. We reverse.
Defendants are emergency medical technicians employed by the City of Detroit. On August 30, 1985, they transported plaintiff's decedent, who was in respiratory distress, from her home to a local hospital. The decedent went into full cardiac arrest in the ambulance and died eight days later.
Plaintiff filed this suit against defendants on April 21, 1988. Count I of plaintiff's complaint alleged negligence; count II alleged gross negligence. Defendants moved for summary disposition on the grounds of failure to state a claim and governmental immunity. The trial court granted defendants' motion for summary disposition of the negligence count, but denied their motion with respect to the gross negligence claim. In denying the latter, the court apparently relied on the definition of individual immunity and gross negligence set forth in § 7 of the governmental tort liability act as amended by 1986 PA 175, MCL 691.1407(2)(c); MSA 3.996(107)(2)(c). Under that section, lower-level governmental employees are not immune from tort liability if their conduct amounts to gross negligence, defined as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results."
On appeal, defendants contend that the trial court improperly applied the definitions of individual immunity and gross negligence set forth at MCL 691.1407; MSA 3.996(107), as amended by 1986 PA 175, and instead should have applied the individual immunity test set forth in Ross v Consumers Power Co (On Rehearing), 420 Mich. 567; 363 N.W.2d 641 (1984). We agree. 1986 PA 175, § 3 provides that the amended MCL 691.1407; MSA 3.996(107) does not apply to causes of action "arising" before July 1, 1986. For purposes of this statute, a cause of action "arises" when the plaintiff's claim accrues, not when it is filed. See Montgomery v Detroit, 181 Mich. App. 298, 308; 448 N.W.2d 822 (1989); DeRocco v Harper Grace Hosp, 182 Mich. App. 188, 191, n 1; 451 N.W.2d 549 (1989); Hyde v Univ of Michigan Bd of Regents, 426 Mich. 223, 246; 393 N.W.2d 847 (1986). But see Bischoff v Calhoun Co Prosecutor, 173 Mich. App. 802, 806 ; 434 N.W.2d 249 (1988). Here, plaintiff's cause of action arose either on August 30, 1985, the date defendants transported the decedent, or September 8, 1985, the date on which she died. The amended statute therefore is inapplicable to this case. The trial court erred in denying defendants' motion for summary disposition of count II on the basis of the statute rather than Ross.
Before 1986 PA 175 became effective, "the existence and scope of individual immunity [was] a creature of judicial decision-making." Ross, supra, p 629. Ross set forth the following test for individual immunity:
Lower level officials, employees, and agents are immune from tort liability only when they are
1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;
2) acting in good faith; and
3) performing discretionary, as opposed to ministerial acts. [ 420 Mich. 633-634.]
The Supreme Court has applied this test to claims of liability for gross negligence, as well as ordinary negligence. See, e.g., Ross, supra, pp 638, n 45, 639.
Here, there is no question that defendants were acting during the course of their employment and within the scope of their authority when they transported the decedent. Plaintiff has not alleged that defendants were acting in bad faith. Therefore, the only determination necessary is whether defendants were engaged in discretionary acts entitling them to immunity under Ross.
Discretionary acts involve significant decision making and entail personal deliberation, decision, and judgment. Ross, supra, pp 634, 635. Ministerial acts involve the execution of a decision with only minor decision making. Id. Although the execution of a medical decision may at times entail a series of medical decisions requiring personal deliberation and judgment, each of those decisions must entail significant decision making or be considered discretionary. Green v Berrien General Hosp Auxiliary, Inc, 437 Mich. 1, 13; 464 N.W.2d 703 (1990). Whether an activity is discretionary or ministerial is a question of law. Gillam v Lloyd, 172 Mich. App. 563, 576; 432 N.W.2d 356 (1988).
Defendants' activities in this case involved more than obedience to routine procedure or minor decision making. They had to assess the degree of the decedent's respiratory distress, determine whether her condition required oxygen therapy, and make a judgment with regard to the amount of physical exertion she was medically able to tolerate. Each of these determinations involved significant medical judgment rather than minor decision making. Defendants therefore were engaged in discretionary activity and were entitled to immunity under Ross. Neither plaintiff's negligence nor gross negligence claim should have survived summary disposition.
Plaintiff argues that the trial court reached the right result in denying summary disposition of her gross negligence claim. Specifically, plaintiff contends that former § 20737 of the emergency medical services act, MCL 333.20737; MSA 14.15(20737), now MCL 333.20965; MSA 14.15(20965), set forth a statutory exception to individual immunity as defined in Ross and that this case falls within that exception. While our Supreme Court recently held that a governmental agency may be held vicariously (but not directly) liable under the emergency medical services act, Malcolm v City of East Detroit, 437 Mich. 132; 468 N.W.2d 479 (1991), the Court has not addressed the question whether former § 20737 set forth an exception to individual immunity. We need not address the question in this case. MCL 333.20737; MSA 14.15(20737) provided that emergency medical technicians were protected from liability for their acts or omissions in treating a patient "unless the act or omission was the result of gross negligence or willful misconduct." Plaintiff, however, has failed to state a claim for gross negligence because she has not alleged that defendants' negligent conduct occurred after some negligent conduct on the part of the decedent. See McNeal v Dep't of Natural Resources, 140 Mich. App. 625, 632; 364 N.W.2d 768 (1985). Furthermore, while plaintiff may have pleaded a high degree of carelessness, she has not pleaded wilful misconduct. Accordingly, even if we were to hold that MCL 333.20737; MSA 14.15(20737) constituted a statutory exception to individual immunity as defined in Ross, plaintiff's complaint falls outside the scope of the statute.
Reversed.