AMIRA ABOUHASSAN V DETROIT BIOMEDICAL LABORATORIES INC
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STATE OF MICHIGAN
COURT OF APPEALS
AMIRA ABOUHASSAN,
UNPUBLISHED
October 7, 2010
Plaintiff-Appellant,
v
No. 291294
Wayne Circuit Court
LC No. 08-125921-CZ
DETROIT BIOMEDICAL LABORATORIES,
INC.,
Defendant-Appellee.
Before: SHAPIRO, P.J., and SAAD and SERVITTO, JJ.
SHAPIRO, P.J. (concurring in part and dissenting in part).
I concur with the majority that plaintiff’s defamation claim was properly dismissed under
MCR 2.116(C)(7) given the statutory immunity from civil liability enjoyed by entities that make
such reports to the health department as mandated by MCL 333.5114. I also agree with the
majority that summary disposition as to plaintiff’s claim for intentional infliction of emotional
injury was properly granted under MCR 2.116(C)(10), as plaintiff failed to provide evidence to
support a claim for intentional infliction of emotional injury. However, I respectfully dissent
from the majority opinion’s affirmance of the dismissal of plaintiff’s negligence claim set forth
in Count III of her complaint.
It is uncontested that plaintiff was not infected with either the AIDS virus nor the
Hepatitis B virus and that, despite this fact, on October 30, 2007, defendant, a licensed clinical
laboratory, advised plaintiff’s physician, who in turn advised plaintiff, that the blood sample
obtained from plaintiff was positive for both of these viruses. In addition, pursuant to the
mandatory requirements of MCL 333.5114, defendant reported the positive findings and
plaintiff’s name to the Michigan Department of Public Health (MDPH). The blood sample
identified as plaintiff’s by the laboratory was also sent to MDPH where the positive findings
were confirmed. It is uncontested that the blood sample tested was Type B and that plaintiff’s
actual blood type is A positive. Thus, there appears to be no question but that the reports to
plaintiff’s physician and the MDPH that she was positive for HIV and Hepatitis B were based
upon readings of a blood sample that did not in fact belong to plaintiff. It is also undisputed that
the only persons who handled the subject sample were agents of plaintiff’s physician and agents
of defendant laboratory. According to an affidavit from the manager of the physician’s office
who personally reviewed the relevant office records, no Type B blood samples were sent by that
office to defendant lab on the relevant date, suggesting that the sample identified by the lab as
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plaintiff’s could not even have come from the office of plaintiff’s doctor. Accordingly, plaintiff
asserts that defendant misattributed findings concerning the blood of another patient to her and
that since her doctor did not draw any Type B blood on the day in question, the mislabeling or
mishandling must have occurred at defendant laboratory.
Contrary to defendant’s assertion, MCL 333.5131(6) immunity does not shield defendant
from plaintiff’s claim that it negligently reported the wrong blood sample results to plaintiff or
her doctor and that plaintiff suffered emotional injury as a result. I agree that MCL 333.5131(6)
provides immunity “for the release of th[e] information,” providing defendant with immunity for
its release of the results of the testing. The statute is silent, however, on immunity for inaccurate
testing and results. There is nothing in the language of the statute that provides or even implies
immunity for a defendant that has negligently handled, labeled or tested samples resulting in
inaccurate results. The distinction is simple to understand. The statute was designed to allow the
disclosure of test results without fear of prosecution for a confidentiality violation based on a
lack of patient permission to disclose. This is evident given that the Legislature gave the
immunity to the “person who releases the results.” MCL 333.5131(6). The statute provides no
immunity to the testing company for negligent actions that result in inaccurate results being
reported. Thus, although the act of actually releasing test results is protected, negligence that
results in inaccurate test results being reported is not. Because plaintiff’s claim arises from
defendant’s negligent labeling, handling, or testing, which resulted in inaccurate test results,
there was no statutory immunity and summary disposition of plaintiff’s negligence claim under
MCR 2.116(C)(7) was improper.
Summary disposition as to Count III was also improper under MCR 2.116(C)(10) as
defendant did not submit any evidence in support of its motion as required by MCR
2.116(G)(3)(b). The only “affidavits, depositions, admissions, or other documentary evidence in
support” of its (C)(10) motion was an affidavit signed by the general manager of defendant lab.
However, that affidavit does not pass muster under MCR 2.116(G)(6) which requires that such
affidavits “shall only be considered to the extent that the content or substance would be
admissible as evidence.” The affidavit submitted by the defense and relied upon by the trial
court amounts to nothing more than a recitation of defendant’s version of the facts signed by a
person who had no personal knowledge of these facts and whose entire affidavit consists of
unsupported hearsay.
The affiant does not indicate that he personally labeled, handled or tested the subject
specimen or that he has personal knowledge of same. He does not even assert that he spoke with
any person who labeled, handled or tested the specimen, or what documents he reviewed, which
would at least provide some basis for his hearsay statements. Despite this, he makes assertions
as to what blood specimens were received by his laboratory, how plaintiff’s sample was labeled,
and what the test results were. In sum, he recites why in his opinion he thinks that his laboratory
did not make a mistake and that the mistake must have happened at the doctor’s office. He does
nothing more than state what he believes, or hopes, the evidence will ultimately show. He does
not assert that he possesses that evidence or even how that evidence will be shown at trial. This
is plainly an inadequate basis upon which to grant summary disposition.
For these reasons, I would reverse and remand for further proceedings as to Count III.
/s/ Douglas B. Shapiro
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