# Fisher v. Department of Mental Health

> Michigan Court of Appeals · August 16, 1983 · 128 Mich. App. 72

URL: https://www.frixlaw.com/law-library/cases/9674919

## Case

- **Full name:** Fisher v. Department of Mental Health
- **Court:** Michigan Court of Appeals
- **Decided:** August 16, 1983
- **Citations:** 128 Mich. App. 72; 339 N.W.2d 692
- **Precedential status:** Published
- **Opinion:** Concurrence by Maher
- **Judges:** Burns, Maher, Hood
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Ross v. Consumers Power Co., 420 Mich. 567 (1985).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9674919

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9674919. Public record. Not legal advice.