Opinion
Docket No. 77-2516.
Decided May 23, 1978. Leave to appeal applied for.
Lopatin, Miller, Bindes, Freedman Bluestone (by Michael Gagleard), for plaintiff.
Sommers, Schwartz, Silver, Schwartz Tyler, P.C. (by James S. Goulding), for defendant.
Before: T.M. BURNS, P.J., and M.F. CAVANAGH and D.C. RILEY, JJ.
The defendant herein secured accelerated judgment on plaintiff's malpractice claim. Defendant's motion was granted on grounds of governmental immunity. The appropriate order was entered and plaintiff appeals by right.
At the outset, we note that defendant's motion for accelerated judgment on the grounds of governmental immunity should have been a motion for summary judgment. McCann v Michigan, 398 Mich. 65, 77; 247 N.W.2d 521 (1976), Butler v Wayne County Sheriff's Dept, 75 Mich. App. 202, 203; 255 N.W.2d 7 (1977). However, the plaintiff was not prejudiced by the mislabeling of defendant's motion as the motion averred that plaintiff had failed to state a claim upon which relief could be granted and because the defendant had governmental immunity.
Plaintiff's initial challenge to the constitutionality of the governmental immunity statute has been rejected by this Court. See Rohrabaugh v Huron-Clinton Metropolitan Authority Corp, 75 Mich. App. 677; 256 N.W.2d 240 (1977), and cases discussed therein.
Plaintiff also contends that the operation of a community owned hospital is not a governmental function which is immune from tort liability. This precise question was recently decided against the plaintiff in White v Detroit, 74 Mich. App. 545; 254 N.W.2d 572 (1977).
"While other areas may require us to use our `creative genius' to resolve the issue of `governmental function', Thomas v Department of State Highways, [ 398 Mich. 1, 11; 247 N.W.2d 530, 533 (1977)] an unbroken line of Michigan authority holds that operation of a community owned hospital is a governmental function. Martinson v Alpena, 328 Mich. 595; 44 N.W.2d 148 (1950), Nicholson v Detroit, 129 Mich. 246; 88 N.W. 695 (1902), Knight v City of Tecumseh, [ 63 Mich. App. 215; 234 N.W.2d 457 (1975)], Lockaby v Wayne County, 63 Mich. App. 185, 190-191; 234 N.W.2d 444, 446 (1975), Snow v Freeman, [ 55 Mich. App. 84; 222 N.W.2d 43 (1974)]. We are compelled to agree that the treatment of plaintiff by Detroit General Hospital was a governmental function, rendering the City of Detroit immune from liability." White, supra, at 548.
The trial court's decision is affirmed. Costs to defendants.
The issues and briefs in this case are identical to those in Brown v Detroit, 83 Mich. App. 342; 268 N.W.2d 400 (1978), also heard by this panel. For the reasons stated in my dissent in Brown, I do not believe the claims of medical malpractice in performing a tracheostomy implicate a "governmental function" under the statute. The case should be remanded for trial.