Douglas v. Pontiac General Hospital , 182 Mich. App. 446 ( 1990 )

Sawyer, J.

The trial court granted defendant Baker’s motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) on the ground of governmental immunity. Plaintiff appeals and we reverse.

Plaintiffs decedent was admitted to defendant Pontiac General Hospital for treatment of a urinary tract infection. While lying on a cart in the emergency room, plaintiffs decedent apparently fell off the cart and fractured her left hip. Apparently, the treating physicians, who were under defendant Baker’s supervision, failed to detect the bone injury and the decedent was discharged without treatment for the fracture. The fracture was later discovered and surgery was performed to treat the injury. Plaintiff’s decedent died allegedly as a result of complications from that surgery.

First, we note that the summary disposition subrules relied upon by defendant Baker in moving for summary disposition and under which the trial court granted summary disposition, namely, MCR 2.116(C)(8), failure to state a claim, and (10), no genuine issue of material fact, are not the appropriate bases for granting summary disposition on the basis of the claim being barred by governmental immunity. Rather, MCR 2.116(C)(7) is the correct subrule for a grant of summary disposition based upon a claim being barred because of immunity granted by law. See Canon v Thumudo, 430 Mich 326, 344; 422 NW2d 688 (1988); see also McCummings v Hurley Medical Center, 433 Mich 404; 446 NW2d 114 (1989).

However, the issue of reliance on the incorrect summary disposition subrule aside, summary disposition was incorrectly granted in this case. Defendant Baker was not an employee of Pontiac General Hospital. Rather, Dr. Baker is a physician in private practice with staff privileges at the hospital. Apparently, one of the conditions of having staff privileges was that Dr. Baker was obligated to provide some supervision of resident physicians participating in the hospital’s residency program. However, defendant Baker received no compensation for this service. Indeed, Baker’s brief on appeal concedes that he was not an employee of the hospital and that he received no compensation with respect to plaintiff’s decedent.

This Court faced a similar issue in Roberts v Pontiac, 176 Mich App 572; 440 NW2d 55 (1989). In Roberts, Pontiac General Hospital had contracted with an entity known as Emergency Services-North Oakland, P.C., which was a private corporation operated for profit by Dr. Joseph Schirle. This Court held that Emergency Services and Schirle were not entitled to the defense of governmental immunity since they were independent contractors rather than governmental employees. Id. at 578. Similarly, in the case at bar, defendant Baker is not an employee of Pontiac General Hospital, but is a physician in private practice. The fact that defendant Baker’s services were rendered as part of his obligations as a staff physician is immaterial. The fact remains that he is not employed by the governmental entity. Accordingly, he is not entitled to the protections of governmental immunity.¹

Since Dr. Baker is not a governmental employee, he is not entitled to the protection of governmental immunity. Therefore, the trial court erred in granting summary disposition in his favor.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff may tax costs.

Holbrook, Jr., P.J., concurred.

1 We acknowledge that there have been some decisions of this Court extending the protections of governmental immunity to individuals who contract with the government and, in fact, the Roberts decision noted a possible distinguishing feature between independent contractors who are individuals and independent contractors who are corporations. Roberts, supra at 578, n 2. However, we are now convinced that such distinctions are immaterial and that the appropriate rule to apply is that the protection of governmental immunity does not extend to those who contract with the government, whether they are individuals or corporations. To the extent that Roberts left open this possibility of distinguishing between cases where corporations contract with the government and where it is an individual who contracts with the government, Judge Sawyer, who was a member of the Roberts panel, now holds that there is no basis for such a distinction.