Timothy a Carl v. Muskegon County

STATE OF MICHIGAN

COURT OF APPEALS

TIMOTHY A. CARL, UNPUBLISHED

February 26, 2015

Plaintiff-Appellant,

v No. 319017

Muskegon Circuit Court

MUSKEGON COUNTY, MARK BURNS, TODD LC No. 12-048776-CZ

GILCHRIST, THERESA JONES-BURTON,

BRIAN BONSTELL, LEONARD BETHKE and

BRENDAN BOWEN, Personal Representatives of

the Estate of CHRISTY BOWEN, DARRYL

HAIRSTON, JASON CERKA, RICHARD TOPP,

SCOTT SMITH, DEAN ROSELER as Muskegon

County Sheriff and Individually, and STEVEN J.

WEINERT,

Defendants,

and

KATHERINE A. JAWOR, D.O.,

Defendant-Appellee.

Before: BECKERING, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

Plaintiff appeals as of right an October 28, 2013, trial court order wherein the trial court

dismissed plaintiff’s complaint against defendant, Katherine A. Jawor, D.O., in its entirety after

granting Jawor summary disposition. Plaintiff appeals the court’s ruling only as to Count II of

his complaint wherein he alleged that Jawor’s medical evaluation at the Muskegon County Jail

(MCJ) amounted to abuse or neglect in violation of MCL 330.1722, a subsection of the Mental

Health Code. For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

In 2008, plaintiff worked as an in-home healthcare aid. On February 23, 2008, plaintiff

was arrested for non-aggravated assault after he urinated on the head of an elderly patient and

tried to pour liquid soap on the head of the woman’s husband. Plaintiff was eventually charged

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with two felony counts of vulnerable adult abuse, MCL 750.145n(1). Relative to this case,

plaintiff was lodged in the MCJ as a pretrial detainee from February 27, 2008 to April 18, 2008.

It is undisputed that, during his stay at the MCJ, plaintiff had contact with several

professionals from the Muskegon County Community Mental Health Department (CMH),

including Jawor. CMH contracted with the MCJ to provide mental health services for inmates at

the jail. Jawor, a psychiatrist, contracted with the CMH to provide services to CMH patients.

Plaintiff was evaluated on several occasions at the jail by CMH professionals including

Jule McLaughlin, a physician’s assistant (P.A.), Joseph Lihan, a limited license psychologist and

emergency services therapist, and Steve Weinert, an emergency services therapist. McLaughlin

proscribed plaintiff Seroquel and several days later on March 3, 2008, she wrote in a note that

plaintiff needed to be “treated in a psychiatric facility.” Weinert wrote a similar note.

On March 5, 2008, Jawor evaluated plaintiff at the MCJ. Jawor testified that her CMH

supervisor requested that she go to the MCJ to evaluate plaintiff to determine whether he

required involuntary hospitalization. At a deposition, Jawor testified that, other than Weinert’s

note, she did not review any of plaintiff’s records before or after she evaluated him for

involuntary admission and she was not aware that plaintiff had a medical chart at the jail. Jawor

explained that she wanted to base her evaluation on her own perceptions and not on information

from others. In addition, Jawor explained that she was not performing a psychiatric evaluation

and instead was determining whether plaintiff should be admitted to the hospital. Jawor

explained that she did not need to review any medical history to determine whether plaintiff

should be involuntarily admitted to the hospital. She also denied that she had a doctor-patient

relationship with plaintiff. Jawor was aware that plaintiff was prescribed Seroquel, but she did

not know whether plaintiff was complying with his medications. She stated that plaintiff

“implied” that he was taking his medications. Jawor testified that she did not know whether

anyone would follow up with plaintiff regarding mental health care; she stated that plaintiff was

not her patient.

Jawor ultimately determined that plaintiff did not meet the criteria for involuntary

admission. Jawor’s physician progress note indicated that she evaluated plaintiff from 4:18 p.m.

to 4:22 p.m. on March 5, 2008. Jawor testified that this was a typo and she stated that she met

with plaintiff for approximately 40 minutes.

Two days after Jawor’s evaluation, plaintiff was again evaluated by a physician who

determined that he did not meet the criteria for involuntary admission. Thereafter, plaintiff

continued to be lodged at the MCJ from March 7, 2008 to April 18, 2008. On April 11, 2008,

plaintiff was deemed incompetent to stand trial in his criminal case and the court ordered that he

be committed to the State Department of Mental Health and placed in a facility recommended by

the Center for Forensic Psychiatry. Plaintiff was transferred to the state psychiatric hospital on

April 18, 2008, where he remained until June 19, 2008, when he was transferred back to the MCJ

on June 19, 2008.

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On December 21, 2012, plaintiff commenced this state court action1 against Muskegon

County, Jawor and 11 other county employees, alleging violations of the Michigan Persons with

Disabilities Civil Rights Act, MCL 37.1101, et seq., (Count 1), and the Michigan Mental Health

Code, MCL 330.1722, (Count 2), negligence (Count 3), and intentional infliction of emotional

distress (Count 4).

Ultimately, all defendants including Jawor moved for summary disposition. After

extensive briefing and oral argument, the trial court took the matter under advisement. During

the interim, plaintiff reached a settlement agreement with all defendants except Jawor and his

claims against those defendants were dismissed and are not at issue in this appeal. The trial court

ultimately granted Jawor’s motion for summary disposition as to all of plaintiff’s claims.

Plaintiff appeals that order with respect to Count 2 under the Mental Health Code.

In Count 2 of his complaint, plaintiff alleged that Jawor violated MCL 330.1722, which

provides in relevant part as follows:

(1) A recipient of mental health services shall not be subjected to abuse or

neglect.

***

(3) A recipient of mental health services who is abused or neglected has a

right to pursue injunctive and other appropriate civil relief.

Under the Mental Health Code, “abuse” and “neglect” are defined as follows:

“Abuse” means nonaccidental physical or emotional harm to a recipient,

or sexual contact with or sexual penetration of a recipient . . . [MCL

330.1100a(2).]

***

“Neglect” means an act or failure to act committed by an employee or

volunteer of the department, a community mental health services program, or a

licensed hospital; a service provider under contract with the department, a

community mental health services program, or a licensed hospital; or an employee

or volunteer of a service provider under contract with the department, a

community mental health services program, or a licensed hospital, that denies a

recipient the standard of care or treatment to which he or she is entitled under

this act. [MCL 330.1100b(19) (emphasis added).]

1

Plaintiff previously filed suit in federal district court, but the court declined to exercise

supplemental jurisdiction over plaintiff’s state law claims against Jawor. The federal court

proceedings are not at issue and have no bearing on the resolution of this appeal.

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In his complaint, plaintiff claimed that Jawor failed to “follow through on a CMH

treatment plan dated March 3, 2008 . . . recommending that [plaintiff] be transferred to the

Kalamazoo Psychiatric Hospital to undergo treatment even though defendants knew [plaintiff]

obviously needed such care. . . .” Plaintiff also alleged that Jawor failed to “follow through on

the recommendation dated March 3, 2008 signed by Steve Weinert that [plaintiff] receive

intensive psychiatric treatment. . . .” Plaintiff further alleged that Jawor “concluded after

spending no more than four minutes with [plaintiff] . . . that [he] could not be certified for

admission to a hospital at that time despite his obvious psychosis and despite the contrary

findings and recommendations of Dr. Khan, Ms. McLaughlin, and Steve Weinert two days

prior.” Plaintiff summarized that “defendants abandoned [plaintiff] knowing that he was

severely ill and needed help.”

In her motion for summary disposition, Jawor argued that the gravamen of Count 2’s

“neglect” claim sounded in medical malpractice because plaintiff essentially argued that Jawor’s

professional medical evaluation fell below the applicable standard of care and therefore

amounted to neglect. Jawor argued that the trial court was required to follow Bryant v Oakpointe

Villa Nursing Ctr, 471 Mich 411; 684 NW2d 864 (2004), to determine whether plaintiff’s claim

sounded in medical malpractice. Jawor argued that under Bryant, plaintiff’s claim “pertains to

an action that occurred within the course of a professional relationship” and the claim “raises

questions of medical judgment beyond the realm of common knowledge and experience.”

Therefore, the claim sounded in malpractice and plaintiff was required and failed to comply with

the procedural requirements that govern a medical malpractice claim, particularly, submitting an

affidavit of merit (AOM) and notice of intent (NOI). Additionally, the statute of limitations

governing malpractice claims had expired. Jawor separately argued that, to the extent plaintiff

alleged that her evaluation amounted to “abuse” under the Mental Health Code, there was no

evidence to support that she abused plaintiff. Jawor argued that summary disposition was

warranted under MCR 2.116(C)(7) (8) and (10).

Plaintiff responded, arguing that Bryant applied only to distinguish medical malpractice

claims from ordinary negligence. In contrast, in this case, plaintiff had a distinct statutory cause

of action under the Mental Health Code that contemplated consideration of the applicable

standard of care. Thus, the claim was distinct from a medical malpractice claim and was not

governed by Bryant.

In support of his complaint, plaintiff proffered the expert testimony of Mark Hinshaw,

M.D., a clinical and forensic psychiatrist, and a report by R. Scott Stehouwer, Ph.D., a clinical

psychologist. Hinshaw testified at a deposition that Jawor’s evaluation amounted to

“abandonment,” that Jawor failed to meet her “ethical” and clinical care requirements, and that

her evaluation fell “far below a standard of care.” In his report, Stehouwer stated as follows:

I am hard pressed, indeed, I have been unable to find any excuse for the

failure on the part of particularly Dr. Jawor and Mr. Weinert in following through

on Mr. Carl’s emotional needs. Their lack of appropriate decision making in this

case is shocking and disheartening. It will be vital for [CMH] and especially for

Mr. Weinert and Dr. Jawor to be given a clear message regarding the barbaric

treatment Mr. Carl received and the torture Mr. Carl was put through by their

failure to act appropriately as mental health professionals.

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The trial court ultimately granted Jawor’s motion for summary disposition, explaining:

The factual allegations of the complaint are that the Defendant failed to

diagnose Plaintiff’s mental illness. Clearly, the relationship between the Plaintiff

and Dr. Jawor at the time she examined him was of a professional nature.

Whether or not there was a misdiagnosis is a question that cannot be resolved by a

jury on the basis of common knowledge and experiences. The Supreme Court has

held that whether a person is properly diagnosed and treated involves issues of

medical judgment. Dorris v Detroit Osteo Hosp Corp, 460 Mich 26; 594 NW2d

455 (1999). Resolution of this question would require expert medical testimony

to establish the medical standard of care. This is tantamount to a claim of

malpractice. [] [Bryant, 471 Mich at 411.] []

Plaintiff contends that the claims under the Mental Health Code . . . cannot

be considered malpractice claims because they are based on a violation of the

statutes. However, the claims of statutory violations are dependent upon proof

that Dr. Jawor failed to properly diagnose and/or treat the Plaintiff. As noted,

supra, this will require expert medical testimony to establish a medical standard of

care.

The complaint’s four counts sound in medical malpractice. The Plaintiff

has not complied with the procedural requirements for filing a malpractice action.

...

Plaintiff appeals the trial court’s order as to Count 2 of his complaint.

II. ANALYSIS

Plaintiff raises three issues on appeal, the essence of which can be boiled down to a

single argument that the trial court erred as a matter of law in granting Jawor’s motion for

summary disposition.

“This Court reviews the grant or denial of summary disposition de novo to determine if

the moving party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109,

118; 597 NW2d 817 (1999). The trial court did not articulate under what court rule it granted

summary disposition. Jawor moved for summary disposition pursuant to MCR 2.116(C)(7) (8)

and (10). Under MCR 2.116(C)(7), summary disposition is proper where a claim is barred as a

matter of law for reasons such as immunity and the statute of limitations. “A motion under MCR

2.116(C)(8) may be granted only where the claims alleged are so clearly unenforceable as a

matter of law that no factual development could possibly justify recovery.” Maiden, 461 Mich at

119 (quotation marks and citations omitted). Finally, summary disposition is proper under MCR

2.116(C)(10) “[w]here the proffered evidence fails to establish a genuine issue regarding any

material fact, the moving party is entitled to judgment as a matter of law.” Id. at 120.

Resolution of this appeal requires that we construe the relevant portions of the Mental

Health Code. Issues involving statutory interpretation involve questions of law that we review

de novo. Cuddington v United Health Servs, Inc, 298 Mich App 264, 271; 826 NW2d 519

(2012). Statutory construction requires that we determine the intent of the Legislature by first

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looking to the plain language of the statute. Tienda v Integon Nat’l Ins Co, 300 Mich App 605,

612; 834 NW2d 908 (2013). Where the language of a statute is unambiguous it clearly expresses

the Legislature’s intent and is not subject to judicial construction. Id.

The Mental Health Code contains several provisions relevant to this case. Chapter 7 of

the act provides for the “Rights of Recipients of Mental Health Services.” MCL 330.1704

provides that “[a] recipient of mental health services shall not be subjected to abuse or neglect.”

MCL 330.1722(1) (emphasis added). Chapter 1 of the act sets forth definitions that must be read

in conjunction with Chapter 7. See Ferguson v Pioneer State Mut of Mich, 273 Mich App 47,

52; 731 NW2d 94 (2006) (provisions of a statute must be read in context of the entire act so as to

produce a harmonious whole). Specifically, Chapter 1 defines the terms “abuse” and “neglect”

in relevant part as follows:

“Abuse” means nonaccidental physical or emotional harm to a recipient,

or sexual contact with or sexual penetration of a recipient . . . [MCL

330.1100a(2).]

***

“Neglect” means an act or failure to act . . . that denies a recipient the

standard of care or treatment to which he or she is entitled under this act. [MCL

330.1100b(19) (emphasis added).]

Read together, the Mental Health Code provides that a recipient of mental health services

shall not be subjected to non-accidental physical or emotional harm or sexual abuse and shall not

be denied “the standard of care or treatment to which he or she is entitled under [the Mental

Health Code].” In addition to affording these rights to recipients of mental health services, the

Mental Health Code contains an enforcement mechanism in MCL 330.1722, which provides as

follows:

(1) A recipient of mental health services shall not be subjected to abuse or

neglect.

(2) The department, each community mental health services program, each

licensed hospital, and each service provider under contract with the department,

community mental health services program, or licensed hospital shall ensure that

appropriate disciplinary action is taken against those who have engaged in abuse

or neglect.

(3) A recipient of mental health services who is abused or neglected has a

right to pursue injunctive and other appropriate civil relief. [MCL 330.1722

(emphasis added).]

Specifically, paragraph (3) is an enforcement mechanism that provides two avenues of

relief to recipients of mental health services who allege abuse or neglect in that it provides the

recipient the right to: (1) pursue injunctive relief and (2) pursue “other appropriate civil relief”

(emphasis added).

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Injunctive relief is not at issue in this case; instead, the central issue is what form of civil

relief plaintiff pursued in his complaint. “It is well established that [t]he gravamen of an action

is determined by reading the claim as a whole . . . and looking beyond the procedural labels to

determine the exact nature of the claim.” Tipton v WM Beaumont Hosp, 266 Mich App 27, 33;

697 NW2d 552 (2005) (quotations and citations omitted). Reading the claim as a whole,

plaintiff alleged in his complaint that Jawor’s medical malpractice amounted to abuse or neglect

under the Mental Health Code.

In this case, the trial court held that plaintiff’s claim sounded in malpractice and cited

Bryant, 471 Mich at 411, in arriving at its conclusion. In Bryant, our Supreme Court explained

that, “in determining whether a claim sounds in ordinary negligence or medical malpractice,” a

court must address the following two “fundamental questions:” “(1) whether the claim pertains

to an action that occurred within the course of a professional relationship; and (2) whether the

claim raises questions of medical judgment beyond the realm of common knowledge and

experience.” Id. at 422.

In Tipton, 266 Mich App at 27, this Court applied Bryant to a claim brought under the

Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq. In Tipton, the plaintiff

alleged that the defendants Beaumont Hospital (Beaumont) and Andrew Check, M.D., violated

two provisions of the MCPA, MCL 445.903(s) and MCL 445.903(cc), when they failed to

disclose that Check was previously involved in five birth-trauma medical malpractice suits. Id.

at 28-30. Specifically, the plaintiff alleged that the defendants violated MCL 445.903(s) and

(cc), which provide as follows:

(1) Unfair, unconscionable, or deceptive methods, acts, or practices in the

conduct of trade or commerce are unlawful and are defined as follows:

***

(s) Failing to reveal a material fact, the omission of which tends to mislead

or deceive the consumer, and which fact could not reasonably be known by the

consumer.

***

(cc) Failing to reveal facts that are material to the transaction in light of

representations of fact made in a positive manner.

On appeal, this Court was tasked with determining whether the plaintiff’s claims were

properly brought under the MCPA. In addressing this issue, this Court reasoned that Bryant

governed whether the plaintiff’s claims sounded in medical malpractice, explaining:

Although [Bryant] applied this test in the context of determining whether

an ordinary negligence claim actually sounded in medical malpractice, the test

succinctly sets forth the ‘two defining characteristics’ of a medical malpractice

claim. Therefore, we hold that it likewise applies in determining whether this

MCPA claim actually sounds in medical malpractice. [Tipton, 266 Mich App at

34.]

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Applying the two-part Bryant test, this Court concluded that the plaintiff’s claims

sounded in medical malpractice because the claims encompassed the plaintiff’s professional

relationship with Check and would have required the plaintiff to show that Check “was

unreliable or unable to provide safe medical care” which involved a question of “medical

judgment requiring expert testimony.” Id. at 36.

In this case, like in Tipton, Bryant governs whether plaintiff’s claim sounded in medical

malpractice. Although plaintiff brought his claim under the Mental Health Code, Bryant sets

forth the “two defining characteristics’ of a medical malpractice claim” in general. Tipton, 266

Mich App at 34. Accordingly, Bryant governs whether plaintiff’s claim sounded in medical

malpractice.

Plaintiff’s claim “pertains to an action that occurred within the course of a professional

relationship” between plaintiff and Jawor. Bryant, 471 Mich 422. “A professional relationship

sufficient to support a claim of medical malpractice exists in those cases in which a licensed

health care professional . . . [was] subject to a contractual duty that required that professional . . .

to render professional health care services to the plaintiff.” Id. at 423. Here, there is no dispute

that Jawor, as a D.O., was a licensed health care professional or that plaintiff sued Jawor in her

capacity as a psychiatrist. Furthermore, Jawor had a contractual duty to render professional

health care service to plaintiff. Id. Specifically, Jawor was contractually employed by CMH to

provide professional mental health services to CMH’s clients. Plaintiff, as a pretrial detainee at

the MCJ, was a CMH client. Thus, Jawor had a contractual duty to render professional health

care service to plaintiff when she went to the jail to evaluate him to determine whether he should

be admitted to a hospital.

The second inquiry under Bryant requires that we determine “whether the claim raises

questions of medical judgment requiring expert testimony or, on the other hand, whether it

alleges facts within the realm of a jury’s common knowledge and experience.” Id. In

considering what constitutes “medical judgment,” the Bryant Court noted that,

Medical malpractice . . . has been defined as the failure of a member of the

medical profession, employed to treat a case professionally, to fulfill the duty to

exercise that degree of skill, care and diligence exercised by members of the same

profession, practicing in the same or similar locality, in light of the present state

of medical science. [Bryant, 471 Mich at 424 (quotations and citations omitted).]

In this case, plaintiff’s claim raised questions of medical judgment that required expert

testimony. At its core, Count 2 of plaintiff’s complaint alleged that Jawor, in her capacity as a

psychiatrist, failed to adequately perform a medical evaluation to determine whether plaintiff

should be involuntarily admitted to a hospital. Plaintiff alleged that Jawor’s failure to properly

perform the evaluation amounted to “abuse and neglect” under the Mental Health Code.

Specifically, plaintiff alleged, in part, that Jawor failed to follow through on prior

recommendations of CMH professionals that he be admitted into a hospital for psychiatric

treatment. Plaintiff also alleged that Jawor “concluded after spending no more than four minutes

with [plaintiff] that [plaintiff] could not be certified for admission to a hospital at that time

despite his obvious psychosis and despite the contrary findings and recommendations of [other

CMH professionals] two days prior.”

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To assess whether Jawor’s medical evaluation caused the damages plaintiff alleged in his

complaint, specialized knowledge was required to establish whether Jawor rendered medical

treatment that fell below the applicable standard of care expected of a reasonable psychiatrist.

The need for specialized knowledge was evident from the testimony of plaintiff’s own expert,

Hinshaw. In particular, Hinshaw testified about Jawor’s clinical obligations during and after her

evaluation. Hinshaw testified that Jawor was a treating physician who failed to “follow

through,” and that Jawor established a doctor-patient relationship. He testified about the duties

that accompanied the doctor-patient relationship and opined that Jawor rendered care that was

“far below a standard of care.” Hinshaw’s testimony illustrated that Count 2 of plaintiff’s claim

required expert testimony.

In short, plaintiff’s claim arose from a professional relationship with Jawor and the claim

raised questions of medical judgment that required expert testimony. Therefore, the trial court

properly held that the claim sounded in medical malpractice under Bryant, 471 Mich at 428-429.

It is undisputed that plaintiff did not comply with the procedural requirements of a medical

malpractice claim in that he did not file an NOI 182 days before he filed his complaint, MCL

600.2912b, and he did not file an AOM with his complaint as required by MCL 600.2912d.

Furthermore, plaintiff’s claim was subject to a two-year statute of limitations. MCL

600.5805(6). Plaintiff’s medical malpractice claim accrued and the limitations period began to

run on the date of the alleged malpractice. MCL 600.5838a(1). Count 2 of plaintiff’s complaint

was based on Jawor’s medical evaluation on March 5, 2008. Therefore, the statute of limitations

on plaintiff’s malpractice claim expired on March 5, 2010. Plaintiff commenced a federal suit on

January 27, 2011, after the limitations period had run. Accordingly, summary disposition was

proper under MCR 2.116(C)(7).

Affirmed. No costs awarded. MCR 7.219(A). We do not retain jurisdiction.

/s/ Jane M. Beckering

/s/ Stephen L. Borrello

/s/ Elizabeth L. Gleicher

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