Murrayv.Beyer Memorial Hosp

Supreme Court of MichiganJun 30, 1980
409 Mich. 217 (Mich. 1980)
409 Mich. 217293 N.W.2d 341

Docket Nos. 61673, 61674.

Argued January 8, 1980 (Calendar No. 7).

Decided June 30, 1980.

Sommers, Schwartz, Silver Schwartz, P.C. (by Stanley S. Schwartz and Richard D. Toth), for plaintiffs.

Cozadd, Shangle Smith (by B. Ward Smith and Daniel J. Andrews) for defendant Beyer Memorial Hospital.


This case involves two complaints, consolidated on appeal, for alleged negligence in the care and treatment of a child at the time of her birth on November 29, 1970. The parents' complaint was filed on November 28, 1972. The complaint on behalf of the child was filed on February 23, 1973. The defendant hospital filed a motion for summary and/or accelerated judgment on the ground that the hospital was engaged in a governmental function and was therefore immune from tort liability under MCL 691.1407; MSA 3.996(107). The circuit court granted the hospital accelerated judgment on December 3, 1975. The Court of Appeals affirmed in an unpublished per curiam opinion on June 12, 1978. Application for leave to appeal to this Court was filed on June 28, 1978.

On December 27, 1978 this Court rendered a decision in Parker v Highland Park, 404 Mich. 183; 273 N.W.2d 413 (1978). Subsequently we granted leave to determine whether the Parker decision should be applied to this case to require reversal and remand to the circuit court for further proceedings. We hold it should, and the rule of Parker is to be applied to all cases pending on December 27, 1978 in which an express challenge to the defense of governmental immunity was made and preserved as well as all cases started after that date. See Placek v Sterling Heights, 405 Mich. 638, 662-668; 275 N.W.2d 511 (1979); Pittman v City of Taylor, 398 Mich. 41, 50; 247 N.W.2d 512 (1976); Daley v LaCroix, 384 Mich. 4, 14; 179 N.W.2d 390 (1970); Bricker v Green, 313 Mich. 218, 236; 21 N.W.2d 105 (1946).

In Parker, four Justices agreed that the activities of a municipally owned general hospital did not constitute a "governmental function" within the meaning of MCL 691.1407; MSA 3.996(107), and thus were not entitled to governmental immunity. Plaintiffs claim that the rule of Parker should apply to the instant case for several reasons: The injury involved here occurred approximately two months after the injury of Parker; they have disputed the defendant hospital's claim to immunity at every step of the proceeding; the fortuity that Parker's case attacking governmental immunity for the day-to-day operation of a hospital was decided first should not deprive plaintiff of the benefit of the rule. (See Placek, supra, 667.)

Defendant, citing Parker v Port Huron Hospital, 361 Mich. 1; 105 N.W.2d 1 (1960), argues for the rule adopted in that case and urges that Parker v Highland Park, supra, be applied prospectively from the date the opinion was released and not cover other cases pending on that date.

We are satisfied that the adventitious disposition of Parker while we held plaintiffs' application in abeyance should not deprive plaintiffs of the benefit of the rule or make available to defendant a defense we will no longer enforce for others.

We acknowledge that whenever a new rule of law is promulgated some unfairness to those who have relied on the old rule may be claimed. Courts, however, do not alter an established rule of law without thorough evaluation of the policy considerations involved. When the decision to overrule precedent is finally made, the Court is satisfied that the importance of the result reached outweighs any unfairness to those negatively affected by the decision. Applying the ruling prospectively with the exception of that case and cases pending on appeal in which the issue was raised and preserved is an attempt to limit any such unfairness.

As Justice MOODY recognized in his concurring opinion in Parker we have removed a defense, not imposed a liability.

"It also should be noted that a full trial is still forthcoming. At trial, plaintiffs will be required to prove their allegations of malpractice by a preponderance of the evidence. Defendant will have a full day in court. Therefore, though the defense of governmental immunity for public general hospitals is removed, all the safeguards of a trial remain."

Reversed and remanded. No costs, a public question.


A majority of this Court in separate opinions determined a municipally owned general hospital providing a public medical service for a fee was not performing a governmental function within the meaning of MCL 691.1407; MSA 3.996(107). Parker v Highland Park, 404 Mich. 183; 273 N.W.2d 413 (1978). I joined two of my colleagues in dissenting from that result. 404 Mich. 183, 202.

However, now that the rule in Parker is the law of this state, I concur with my Brother KAVANAGH that that rule should apply "to all cases pending on December 27, 1978 in which an express challenge to the defense of governmental immunity was made and preserved as well as all cases started after that date" (ante, p 221). See my concurring opinion in Pittman v City of Taylor, 398 Mich. 41, 51; 247 N.W. 512 (1976); Bricker v Green, 313 Mich. 218, 236; 21 N.W.2d 105 (1946). The prospective only ruling of Parker v Port Huron Hospital, 361 Mich. 1; 105 N.W.2d 1 (1960), is not entirely applicable to this case. First of all, that case involved a charitable hospital, whereas this case involves a public hospital. Second, unfortunately, the state of the law as to what constitutes governmental immunity, without further legislative definition, has for some years been in flux. While in the field of governmental immunity there has been no such clear and simple signal of change as was specifically given in comparative negligence, Placek v Sterling Heights, 405 Mich. 638, 662-668; 275 N.W.2d 511 (1979), the opinions of this Court have been such as should warn those who might possibly be affected that they had better seek protection either through insurance or through legislative redefinition. See, for example, Parker v Port Huron Hospital, 361 Mich. 1; 105 N.W.2d 1 (1960), itself; Williams v Detroit, 364 Mich. 231; 111 N.W.2d 1 (1961); and more recently and subsequent to the facts of this case, the dissenting opinions in Thomas v Dep't of State Highways, 398 Mich. 1, 14, 25; 247 N.W.2d 530 (1976); Bush v Oscoda Area Schools, 405 Mich. 716, 734; 275 N.W.2d 268 (1979).

The argument for excepting the operation of a publicly-owned hospital from the immunity provided governmental agencies in MCL 691.1407; MSA 3.996(107), was convincing to four Justices of this Court in Parker v Highland Park, 404 Mich. 183; 273 N.W.2d 413 (1978), and thus has become the law.

Consequently, the only remaining question in this case is whether the 1978 change in the law of governmental immunity effected by Parker should be applied retroactively to benefit the instant plaintiffs who claim against the defendants for negligence alleged to have occurred in 1970.

From the Court's affirmative answer to that question, I respectfully dissent and would apply Parker in a purely prospective fashion; that is, to causes of action accruing after December 27, 1978, the date of decision in that case.


Parker was decided almost six years after the acts and omissions for which the plaintiffs make complaint in these cases. For more than three-quarters of a century before Parker was decided, the courts of this state followed the settled rule that the operation of a public hospital was a governmental function and, as a result, such institutions were immune from tort liability. See Nicholson v Detroit, 129 Mich. 246; 88 N.W. 695 (1902); Martinson v Alpena, 328 Mich. 595; 44 N.W.2d 148 (1950); Schwartz v Detroit, 83 Mich. App. 590; 269 N.W.2d 237 (1978), rev'd 405 Mich. 839 (1979).

Schwartz is one of approximately 17 Court of Appeals decisions which were reversed by this Court upon peremptory order, citing Parker and giving it retroactive effect without saying so.

In Parker, recognizing that the Court was changing the meaning of "governmental function", as that expression had historically been defined and applied to the operation of public hospitals in this state, Justice FITZGERALD said:

" In the past this Court did hold that the operation of a hospital was a governmental function. Nicholson v Detroit, 129 Mich. 246; 88 N.W. 695 (1902); Martinson v Alpena, 328 Mich. 595; 44 N.W.2d 148 (1950).

"We do not believe that because we once held the operation of a hospital to be a governmental function we must do so today. A comparison of the reasoning employed by this Court in Nicholson with that of Martinson shows that the meaning of the term `governmental function' has varied as the judiciary's thinking on the nature of government has evolved.

"Nor do we believe that the Legislature intended that we must today hold the operation of a hospital to be a governmental function because we did so in 1902 and 1950.

* * *

" It is time we recognize that our case-law precedent, as it attempts to distinguish between a governmental and a proprietary function, is `inherently unsound'." 404 Mich. 190-193. (Emphasis added.)

In similar recognition, Justice MOODY, writing separately, said:

"It is held today that activity conducted in a general hospital operated by a municipality is not a governmental function for immunity purposes. This conclusion is predicated on the basis that the term `governmental function' is limited to those activities sui generis governmental — of essence to governing." 404 Mich. 199. (Emphasis added.)

Thus at the time of the incidents involved in this case, the law was well-settled that the operation of a publicly-owned hospital was a governmental function for which there existed immunity from tort liability. In addition to this Court's adherence to that doctrine for three generations, the Legislature, just three months prior to the acts or omissions complained of in this case, reenacted the statute declaring governmental agencies to be immune from tort liability when engaged in the exercise and discharge of the governmental function, MCL 691.1407; MSA 3.996(107); a reenactment employing the language of art having the well-settled meanings announced and adopted by this Court in Nicholson and Martinson, and by the Court of Appeals in Schwartz, supra.

In light of that history, the defendant hospital authority was entitled to conclude in 1970, and indeed for the eight years thereafter until Parker was decided, that this Court and the Legislature meant what they had said about the immunity of public hospitals. Reliance by appellant, and those similarly situated, upon the immunity doctrine as historically applied was important, not alone as an abstract matter of assuring consistency and predictability in the law of torts and all that implies, but also as a matter of fairness to the taxpayers who own and fund this public hospital authority which was not insured for the liability to which this Court today retroactively exposes it.

In her separate opinion in Placek v Sterling Heights, 405 Mich. 638, 683; 275 N.W.2d 511 (1979), Chief Justice COLEMAN persuasively advanced a number of reasons for the purely prospective application of the newborn doctrine of comparative negligence. Her views did not carry the day with a majority of the Justices. I subscribed to them, however, and assign the identical reasons for purely prospective overrulement in this case. A few of those reasons, as I perceive them to be particularly applicable to this case, can be summarized as follows:

— When the Court so clearly and concededly engages in the lawmaking process, the fiction that it is merely giving effect to the preexisting rights of the litigants, which were frustrated by the overruled law, is especially inapt. A more accurate assessment of judicial lawmaking recognizes that the Court is, instead, making new law. Accordingly, it ought to "legislate" with purely prospective effect as our sister branch, the Legislature, does.

— As a practical matter, retroactive application of the Parker doctrine will confer a cause of action upon an uncertain number of potential plaintiffs who, in this age of heightened sensitivity to medical malpractice, will unquestionably add a substantial burden to already overcrowded civil trial dockets.

— Perhaps most importantly, in extending the newly announced "Parker doctrine" retroactively to embrace a cause of action which accrued more than nine years ago by a pronouncement which concededly changed the law, the Court once again undermines this state's badly damaged doctrine of stare decisis, of which the rule of purely prospective application is a logical corollary. Retroactive application of new law, especially that effecting significant change, depreciates the ends to which the doctrine of stare decisis is directed: stability, certainty, and fairness. In essence, these ends protect the basic and justified expectation that one may rely upon law as it exists at the time of reliance. By today's action, then, we prove, among other things, that insurers, attorneys, the Legislature, governmental agencies, courts and the public, which will ultimately pay for today's generosity, were unwise to rely upon our statements on the law of governmental immunity and hence should not rely upon our future pronouncements because we may change the law, retroactively, for a period of as much as a decade.

I also note in this regard that at a time when the cost of health care is soaring beyond the financial capacity of many, even to the extent of a national crisis calling for congressional action, this Court's retroactive ruling imposes upon the taxpayers of this state the obligation to finance the cost of litigation and, in many cases, the jury awards for negligence claims accruing as long as a decade ago. Whether public hospital and medical care institutions had either the foresight or the lack of confidence in this Court to obtain insurance against such liability during the last decade, or whether, as is the case of the defendants at bar, such agencies are uninsured, in the last analysis the cost of the Court's generosity today will ultimately be borne, as indeed it always is, by Michigan's beleaguered taxpayers.

Purely prospective, or "Sunburst", application of Parker would be judicial recognition of the case for what it is: judicial legislation thought by a majority of the Justices to be fairer and wiser than the old rule. Prospective application would preserve the integrity of and respect for our doctrine of stare decisis; treat all litigants heretofore concerned with this issue the same, without selective reward or disadvantage; afford public funding authorities the opportunity to prepare for the burden of ever-increasing medical malpractice litigation; and, not unimportantly, acknowledge the validity of the defendant's claim in this case that there is a basic injustice in changing the rules of the game after the final whistle is blown.

Great Northern R Co v Sunburst Oil Refining Co, 287 U.S. 358, 365; 53 S Ct 145; 77 L Ed 360 (1932) (Cardozo, J.):
"The common law as administered by [a state's] judges ascribes to the decisions of [its] highest court a power to bind * * * that is unextinguished, for intermediate transactions, by a decision overruling them."

I recognize that during the last several months, in reliance upon Parker and without any majority statement of retroactive application, this Court has peremptorily reversed the decision of the Court of Appeals in some 17 cases in which our settled law acknowledging immunity was applied by that Court. We have returned those cases to the trial courts for consideration in the light of Parker. To have done so in those cases was error, since Parker made no statement as to its application, forward or backward. I decline to compound that error, however, by opting for retroactive application of the new doctrine because I believe such application to be unjust.

Snow v Freeman, 405 Mich. 837; Schwartz v Detroit, 405 Mich. 839; Jackson v Sturgis, 405 Mich. 839; Tauber v Highland Park General Hospital, 405 Mich. 840; Colby v Wayne County General Hospital, 405 Mich. 840; Thorpe v Wayne County General Hospital, 406 Mich. 855; Poulos v Outer Drive Hospital, 406 Mich. 855; Martin v River Dist Community Hospital Authority, 406 Mich. 856; Mieksztyn v Sarragh, 406 Mich. 856; Decker v Outer Drive Hospital, 406 Mich. 857; Robb v Pontiac General Hospital, 406 Mich. 858; Brown v Detroit, 406 Mich. 859; Ricca v Hug, 406 Mich. 860; Raines v City of Flint, 406 Mich. 865; Thomas v Wyandotte General Hospital, 406 Mich. 865; Montie v Wayne County General Hospital, 406 Mich. 867; Warfield v Wyandotte, 406 Mich. 904.

For the foregoing reasons I would affirm the decision of the Court of Appeals in these cases and declare the rule announced in Parker, supra, to be applicable to causes of action accruing on or after December 27, 1978, the date of decision in that case.

COLEMAN, C.J., concurred with RYAN, J.