JACK H KAUFMAN V DETROIT-MACOMB HOSP CORP
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STATE OF MICHIGAN
COURT OF APPEALS
DR. JACK H. KAUFMAN,
UNPUBLISHED
February 8, 2002
Plaintiff-Appellant,
No. 221873
Macomb Circuit Court
LC No. 98-003910-NO
v
DETROIT-MACOMB HOSPITAL
CORPORATION and LUIS CAMERO,
Defendants-Appellees,
and
SHYAM MISHRA,
Defendant.
Before: Owens, P.J., and Holbrook, Jr., and Talbot, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting summary disposition in favor of
defendants. We affirm.
On April 1, 1998, plaintiff, a physician with his own private practice, began working as a
physician-reviewer under a thirty-day contract for defendant Detroit-Macomb Hospital
Corporation (DMHC). The contract specified that plaintiff was an independent contractor.
Plaintiff worked six hours per week for DMHC. Plaintiff was informed that if his performance
was satisfactory, he could expect at least a one-year contract from DMHC.
After plaintiff began working for DMHC, members of the hospital staff expressed
concern that plaintiff had testified on behalf of the plaintiffs in medical malpractice cases. One
of the individuals expressing concern was defendant Luis Camero, who complained to Dr.
Seymour Gordan, the hospital Chief of Staff, who in turn passed on the concerns to Cynthia
Nicholas, the hospital’s manager of quality management. There were also some complaints that
plaintiff was recommending the premature discharge of patients. Plaintiff alleges that he was
unaware of any complaints about his work performance, but was informed about the physicians’
concerns about his legal testimony.
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Plaintiff remained a physician reviewer for DMHC past April 30, 1998, when his
probationary contract expired. On May 12, 1998, Nicolas requested that plaintiff submit a list of
his “Plaintiff and Defendant activities” by May 20, 1998, in order to “facilitate further contract
discussions.” Plaintiff replied in writing, explaining that he has reviewed medical negligence
cases for law firms for fifteen years. He did not provide a list of the work he did for medical
malpractice plaintiffs versus the work he did for defendants as Nicholas wanted. Plaintiff was
later notified that his services were no longer needed and that his contract would not be renewed.
On July 17, 1998, plaintiff filed suit against defendants, alleging that he was terminated
in retaliation for testifying in medical malpractice cases contrary to MCL 333.20176a, that the
hospital breached its employment agreement, and that Camero’s complaints constituted tortious
interference with plaintiff’s contract with the hospital. On July 1, 1999, defendants filed a
motion for summary disposition pursuant to MCR 2.116(C)(4), (8) and (10).1 Defendants argued
that the trial court lacked subject matter jurisdiction over plaintiff’s claims, that plaintiff failed to
assert proper claims of tortious interference and wrongful termination in violation of public
policy, and that there was no genuine issue of material fact. The trial court granted summary
disposition for defendants.
Plaintiff first argues that the trial court had subject matter jurisdiction to hear his claims
against defendants. Based on the trial court’s statements during the hearing on defendants’
motion for summary disposition, it appears that the trial court implicitly concluded that it had
jurisdiction over plaintiff’s claims. Accordingly, plaintiff was not aggrieved by the trial court’s
action. In any event, we agree with plaintiff that the trial court did have jurisdiction.
Plaintiff next contends that the trial court erred when it dismissed his claims of wrongful
termination and tortious interference. We disagree. Although the motion was premised on MCR
2.116(C)(4), (8) and (10), because the trial court did not indicate on which grounds it granted
summary disposition, and because the court examined evidence outside the pleadings when
rendering its decision, the issue will be reviewed under the standard of review applicable to
(C)(10) motions. Kubisz v Cadillac Gage Textron, Inc, 236 Mich App 629, 633 n 4; 601 NW2d
160 (1999). This Court reviews decisions on motions for summary disposition de novo. Spiek v
Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
A motion pursuant to MCR 2.116(C)(10) tests the factual basis underlying a
plaintiff’s claim. MCR 2.116(C)(10) permits summary disposition when, except
for the amount of damages, there is no genuine issue concerning any material fact
and the moving party is entitled to damages as a matter of law. A court reviewing
such a motion must consider the pleadings, affidavits, depositions, admissions,
and any other evidence in favor of the opposing party and grant the benefit of any
reasonable doubt to the opposing party. [Stehlik v Johnson (On Rehearing), 206
Mich App 83, 85; 520 NW2d 633 (1994).]
When plaintiff was terminated, his contract with DMHC had expired. Accordingly,
plaintiff was then an at-will employee. An at-will employee can be discharged “at any time for
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The trial court had denied an earlier motion for summary disposition without prejudice.
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any, or no, reason.” Edelberg v Leco Corp, 236 Mich App 177, 179; 599 NW2d 785 (1999).
However, an at-will employee may have an action for wrongful discharge if the discharge was
contrary to public policy. Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694696; 316 NW2d 710 (1982).
The three public policy exceptions to the at-will doctrine apply when (1) the
employee is discharged in violation of an explicit legislative statement prohibiting
discharge of employees who act in accordance with a statutory right or duty, (2)
the employee is discharged for the failure or refusal to violate the law in the
course of employment, and (3) the employee is discharged for exercising a right
conferred by a well-established legislative enactment. [Edelberg, supra at 180.]
Plaintiff claims that the first of the Suchodolski exceptions applies in the case at hand.
Specifically, plaintiff cites MCL 333.20176a, which states in pertinent part:
(1) A health facility or agency shall not discharge . . . an employee . . .
because the employee or an individual acting on behalf of the employee . . . :
***
(b) Acts as an expert witness in a civil action involving medical
malpractice or in an administrative action.
While § 20176a prohibits a health facility from discharging an employee who acts as an
expert witness, it does not provide the discharged employee with a cause of action or remedy.
Instead, the statute allows for various administrative sanctions against the hospital. In other
words, the statute falls short of providing the discharged employee with a statutory right to
testify as an expert witness. In addition, plaintiff does not claim that he ever testified while an
employee of defendant hospital. Thus, we do not believe that the aforementioned Suchodolski
exception is applicable. Accordingly, we conclude that the trial court correctly dismissed
plaintiff’s claim of wrongful discharge.
Plaintiff also contends that his claims for tortious interference with his contract or
business relationship with DMHC should not have been dismissed. Again, we disagree. An atwill employee has an “interest in the freedom of the employer to exercise its judgment without
illegal interference or compulsion, and . . . unjustified interference by third persons . . . is
actionable” in an action for tortious interference with an at-will employment contract. Patillo v
Equitable Life Assurance Soc, 199 Mich App 450, 457; 502 NW2d 696 (1992).
After reviewing the record in the appropriate light, we conclude that plaintiff has not
presented sufficient evidence to sustain his claim of tortious interference. Plaintiff has not
presented sufficient evidence to create a genuine issue of material fact as to whether Camero’s
actions induced or caused a breach or termination of plaintiff’s business relationship with
DMHC. See Winiemko v Valenti, 203 Mich App 411, 416; 513 NW2d 181 (1994).
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Affirmed.
/s/ Donald S. Owens
/s/ Donald E. Holbrook, Jr.
/s/ Michael J. Talbot
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