Helmer v. Peoples Community Hospital Authority , 161 Mich. App. 675 ( 1987 )

161 Mich. App. 675 (1987) 411 N.W.2d 823

HELMER
v.
PEOPLES COMMUNITY HOSPITAL AUTHORITY

Docket No. 89434.

Michigan Court of Appeals.

Decided July 20, 1987.

Frederick D. Jasmer, P.C. (by Frederick D. Jasmer), for plaintiff.

Cozadd, Shangle, Smith & Andrews (by John R. Day), for Peoples Community Hospital Authority.

Feikens, Foster, Vander Male & De Nardis, P.C. (by William C. Hurley and Dennis J. Mendis), for David Taubin, M.D., and Emergency Physicians Medical Group.

Before: CYNAR, P.J., and WEAVER and M.H. CHERRY,^[*] JJ.

PER CURIAM.

Plaintiff, the father of decedent Douglas Helmer and also the administrator of Douglas Helmer's estate, appeals as of right from summary disposition entered by the Wayne Circuit Court in favor of defendants on the basis of governmental immunity, MCR 2.116(C)(7), and also from denial of a motion to amend. We affirm.

This wrongful death and malpractice suit arose out of the suicide of plaintiff's son, who died when he crashed in a small airplane he had rented on January 31, 1978. The young man's death occurred after an earlier attempted suicide for which he had been treated at defendant hospital by third-party defendant David Taubin, M.D.

Plaintiff filed a complaint against Peoples Community Hospital Authority (defendant hospital) on January 28, 1980. Although on June 23, 1981, defendant hospital filed a third-party complaint against Dr. Taubin and Emergency Physicians Medical Group, plaintiff did not assert any claims against them. Plaintiff's case was pending in the circuit court on January 22, 1985, when the Michigan Supreme Court released its opinion concerning governmental immunity in Ross v Consumers Power Co (On Rehearing), 420 Mich. 567; 363 NW2d 641 (1984).^[1] The circuit court subsequently granted defendant hospital's motion for summary disposition on the basis of governmental immunity under MCR 2.116(C)(7). Citing expiration of the period of limitations as it applied to the third-party defendants, the circuit court also denied plaintiff's motion to amend his complaint to substitute the third-party defendants as principal defendants in the case. Plaintiff appeals from both decisions of the circuit court.

On appeal, plaintiff argues that the circuit court improperly decided that Ross, supra, retroactively barred plaintiff's cause of action, that such application contravened plaintiff's due process rights, and that the trial court erred in determining that the statute of limitations prevented plaintiff's substitution of third-party defendants as principal defendants in the case.

I

We find no error in the circuit court's retroactive application of Ross. The defendant hospital, as a public general hospital, is a state agency. See Ecorse v Peoples Community Hospital Authority, 336 Mich. 490, 502; 58 NW2d 159 (1953). Defendant hospital's operation is authorized by statute. MCL 331.1 et seq.; MSA 5.2456(1) et seq. Although Parker v Highland Park, 404 Mich. 183, 194-195; 273 NW2d 413 (1978), had previously held that public general hospitals are not immune from tort liability, the language of Ross implies that a public general hospital is engaged in the exercise or discharge of a governmental function, and, therefore, is immune whenever its activities are expressly or impliedly mandated or authorized by constitution, statute, or other law. Ross, supra, 620-621. However, Ross did not indicate whether its decision should be applied retroactively.

This issue remained to be resolved by Hyde v University of Michigan Regents, 426 Mich. 223, 237-242; 393 NW2d 847 (1986), which was decided after plaintiff had filed his appeal brief in this case. Hyde applies governmental immunity to a public general hospital, noting the general rule that judicial decisions are generally given complete retroactive effect and that Ross had impliedly overruled Parker. Hyde, supra, 240, 245-246. Hyde concluded that Ross specifically applied "to all cases commenced after ... and ... pending either in trial or appellate courts on January 22, 1985, in which a governmental immunity issue was properly raised and preserved." Hyde, supra, 230.

Here, plaintiff's case was pending in the courts on January 22, 1985, the date the Ross decision was released, and defendant hospital had raised in its answer the affirmative defense of governmental immunity. Because plaintiff concedes that his suit would be properly barred if Ross could be retroactively applied, and since Hyde clearly mandates this result, further analysis and application of the Ross immunity test is unnecessary.

II

Plaintiff's argument that he relied upon Parker, supra, to allege that public general hospitals are not subject to immunity and that, therefore, the retroactive application of Ross denies him due process of law is without merit. First, plaintiff failed to preserve the issue for appeal by raising it in the trial court. Oakland Co v Detroit, 81 Mich. App. 308, 313; 265 NW2d 130 (1978), lv den 403 Mich. 810 (1978). Second, as already noted, this very claim was rejected in Hyde, which held that Ross had superseded Parker.

III

Plaintiff's final argument is that the trial court erred by applying the statute of limitations to prevent his substitution of third-party defendants as principal defendants in this case. We do not agree.

It was within the discretion of the circuit court to grant or deny a motion to amend a pleading or to add a party. MCR 2.118(A); MCR 2.207; In re Yeager Bridge Co, 150 Mich. App. 386, 397; 389 NW2d 99 (1986). Here, the court properly exercised its discretion when deciding that the amendment was barred by the statute of limitations, which provides a period of limitation of two years from the date of accrual or six months from the date the claim was discovered or should have been discovered. MCL 600.5805(4); MSA 27A.5805(4); MCL 600.5838(2); MSA 27A.5838(2). The alleged malpractice occurred on January 31, 1978; plaintiff filed his complaint against defendant hospital on January 28, 1980. Although defendant's third-party complaint was filed on June 23, 1981, plaintiff waited until after the court granted defendant hospital's motion for summary disposition, on or about November 12, 1985, to file his motion to amend the complaint.

Under MCR 2.204(A)(3), plaintiff could have asserted a claim against third-party defendants at any time before the period of limitation expired, but did not do so. Higginbotham v Fearer Leasing, Inc, 32 Mich. App. 664, 673-674, 677; 189 NW2d 125 (1971), lv den 385 Mich. 765 (1971). Such failure may reasonably be interpreted as an election to forego the right to name third-party defendants as principal defendants.

Plaintiff's reliance on MCR 2.118(D), which provides for relation back of an amendment to the date of the original pleading, is unavailing. This is because an amendment will generally not relate back to the original filing date for purposes of adding a new principal defendant if the period of limitation has expired as to that defendant. Higginbotham, supra, 673-674, 677; Browder v Int'l Fidelity Ins Co, 98 Mich. App. 358, 361; 296 NW2d 60 (1980), aff'd 413 Mich. 603; 321 NW2d 668 (1982). See also Forest v Parmalee (On Rehearing), 60 Mich. App. 401; 231 NW2d 378 (1975), aff'd 402 Mich. 348; 262 NW2d 653 (1978). We see no reason to create an exception in this case.

For the foregoing reasons, we uphold the circuit court's granting of summary disposition and denial of the motion to amend.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] In July of 1982 the trial court granted defendant hospital's motion for directed verdict on the basis that plaintiff had failed to introduce evidence that the alleged malpractice was the proximate cause of decedent's suicide. On appeal, this Court in an unpublished per curiam opinion reversed the directed verdict, holding that the trial court abused its discretion when refusing to let a particular doctor testify as to the standard of care for emergency room personnel, and remanded the case to allow this testimony. Estate of Helmer, unpublished opinion per curiam of the Court of Appeals, decided June 23, 1984 (Docket No. 67190).