Opinion

Fisher v. Department of Mental Health

  • 128 Mich. App. 72
  • 339 N.W.2d 692
Court
Michigan Court of Appeals
Filed
Aug 16, 1983
Status
Published
Author
Maher
On the bench
Burns, Maher, Hood
Cited by
6 cases
Authority
More cited than 8.1%

Reversed by Ross v. Consumers Power Co., 420 Mich. 567 (1985)

The opinion

R. M. Maher, J.

(concurring). I concur in Judge Hood’s disposition of this case, but for different reasons. I adhere to the view that a public employee is immune from liability for negligence if the allegedly negligent act falls within the scope of his employment. See Davis v Lhim, 124 Mich App *86 291 ; 335 NW2d 481 (1983). A negligent act falls within the scope of the actor’s employment only if the duty he breached is imposed upon him because he is a public employee. Davis, supra, p 296 . In the present case, the plaintiff alleged that the individual defendants were guilty of malpractice inasmuch as they breached their duty to follow the applicable professional standards. In Davis, surpa, p 297,1 said:

"All psychiatrists, whether employed by a state institution or private facility, are subject to a duty to exercise competent, professional judgment in all aspects of treatment of their patients * * *.”

Thus, the duty that the individual defendants allegedly breached is not a public duty. Consequently, their acts of malpractice, as alleged, are not within the scope of their employment. Accordingly, I hold that the individual defendants are not immune from liability for malpractice.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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