ELIZABETH DAWE V DR REUVAN BAR-LEVAV & ASSOC PCAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
July 10, 2008
BLUE CROSS BLUE SHIELD OF MICHIGAN,
DR. REUVAN BAR-LEVAV & ASSOCIATES,
P.C., the ESTATE of DR. REUVAN BARLEVAV, M.D., and DR. LEORA BAR-LEVAV,
Oakland Circuit Court
LC No. 2001-036687-NH
Advance Sheets Version
Before: Smolenski, P.J., Whitbeck, C.J., and Kelly, J.
SMOLENSKI, P.J. (dissenting).
Because I do not agree that MCL 330.1946 preempts plaintiff Elizabeth Dawe’s
common-law medical malpractice claim and conclude that there were no errors warranting a new
trial, I cannot agree with the majority’s decision to vacate the judgment against defendants.
Therefore, I must respectfully dissent.
I. Preemption of Plaintiff’s Medical Malpractice Claim
On appeal, defendants argue that MCL 330.1946 preempts plaintiff’s malpractice claim.
Specifically, defendants contend that the only duty that defendants owed to plaintiff with respect
to Brooks’s conduct was the duty imposed by MCL 330.1946. I cannot agree.
Plaintiff originally sued defendants under two theories: statutory liability for failure to
warn under MCL 330.1946 and common-law medical malpractice based on a failure to warn.
However, as the case proceeded, plaintiff’s medical malpractice claim evolved. At trial, plaintiff
continued to argue that defendants breached their duty to warn under MCL 330.1946. But, rather
than argue that defendants also had a duty to warn under the common law, plaintiff argued that
defendants breached their common-law duty to treat plaintiff within the applicable standard of
care. Specifically, plaintiff contended that defendants breached the standard of care by placing
Brooks in plaintiff’s group therapy sessions when they knew or should have known that Brooks
was a danger to the other group members. Hence, by the time of trial, plaintiff’s common-law
claim was no longer premised exclusively on defendants’ failure to warn or protect Dawe from
the danger posed by Brooks. Instead, plaintiff’s claim was premised on defendants’ decision to
negligently expose her to a dangerous patient in a group therapy setting. Because this claim
implicates both defendants’ common-law duty to protect third parties from patients and
defendants’ duty to properly treat plaintiff, I will examine whether and to what extent MCL
330.1946(1) affected each theory of liability.
A. Standards of Review
“The common law, which has been adopted as part of our jurisprudence, remains in force
until amended or repealed.” Wold Architects & Engineers v Strat, 474 Mich 223, 233; 713
NW2d 750 (2006), citing Const 1963, art 3, § 7. Whether a statute abrogates or modifies the
common law is matter of legislative intent. Hoerstman Gen Contracting, Inc v Hahn, 474 Mich
66, 74; 711 NW2d 340 (2006). When the Legislature exercises its authority to modify the
common law, “it should speak in no uncertain terms.” Id. Further, legislative amendment of the
common law is not lightly presumed. Wold, supra at 233. Finally, statutory interpretation is an
issue of law that is reviewed de novo. Shinholster v Annapolis Hosp, 471 Mich 540, 548; 685
NW2d 275 (2004).
The common law imposes on all persons a general obligation to refrain from engaging in
negligent conduct—to act reasonably in light of the apparent risk to others. See Moning v
Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). It does not, however, normally obligate one
person to protect another from third parties. Williams v Cunningham Drug Stores, Inc, 429 Mich
495, 498-499; 418 NW2d 381 (1988).1 But a duty to protect another from harm caused by a
third person may arise from “a ‘special relationship’ either between the defendant and the victim,
or the defendant and the third party who caused the injury.” Murdock v Higgins, 454 Mich 46,
54; 559 NW2d 639 (1997). One such special relationship is the one between a psychiatrist and a
patient, which gives rise to “a duty of reasonable care to a person who is foreseeably endangered
by [the psychiatrist’s] patient.” Davis v Lhim, 124 Mich App 291, 301; 335 NW2d 481 (1983),
rev’d on other grounds sub nom Canon v Thumudo, 430 Mich 326 (1988). Hence, under the
common law, “when a psychiatrist determines or, pursuant to the standard of care of his
profession, should determine that his patient poses a serious danger of violence to a readily
The distinction is one of nonfeasance, or failing to intervene, versus misfeasance, which is
actively setting events in motion that lead to the harm. Williams, supra at 498.
identifiable person, the psychiatrist has a duty to use reasonable care to protect that individual
against danger.” Lhim, supra at 305.
With the enactment of MCL 330.1946(1), our Legislature modified this common-law
duty to protect third parties:
If a patient communicates to a mental health professional who is treating
the patient a threat of physical violence against a reasonably identifiable third
person and the recipient has the apparent intent and ability to carry out that threat
in the foreseeable future, the mental health professional has a duty to take action
as prescribed in [MCL 330.1946(2)]. Except as provided in this section, a mental
health professional does not have a duty to warn a third person of a threat as
described in this subsection or to protect the third person.
With this statute, the Legislature accomplished two things: it established a statutory duty for
mental-health professionals to warn or protect others on the basis of the mental-health
professional’s relationship with certain patients, and it abrogated any common-law duty to warn
or protect third parties from these patients except as provided under the statute.
The first sentence of MCL 330.1946(1) establishes a statutory duty for mental-health
professionals to warn or protect third parties. Under this provision, a mental-health professional
has a duty to take the steps listed under MCL 330.1946(2) if (1) the mental-health professional is
treating a patient, (2) the patient communicates to the mental-health professional (3) a threat of
physical violence (4) against a reasonably identifiable third person, and (5) the “recipient” has
the apparent intent and ability to carry out the threat in the foreseeable future. Further, the
second sentence clearly provides that, except as provided by the first sentence, a mental-health
professional does not have a duty “to warn a third person of a threat as described in this
subsection or protect the third person.” MCL 330.1946(1). Hence, the second sentence
abrogates a mental-health professional’s common-law duty to warn or protect third persons from
dangerous patients. But, by referring to the threats described under the first sentence and noting
that the mental-health professional does not have a duty to warn of those threats or otherwise
protect “the third person” threatened “as described,” the Legislature limited application of MCL
330.1946(1) to those instances involving patients who meet the criteria described under the first
In 1995, the Legislature amended MCL 330.1946 to change the third use of the word
“patient” in sentence one to “recipient.” See 1995 PA 290. All other references to “patient” in
the statute were left unaltered. The term “recipient” is defined to mean “an individual who
receives mental health services from the department, a community mental health services
program, or a facility or from a provider that is under contract with the department or a
community mental health services program.” MCL 330.1100c(12). Not all patients of mentalhealth professionals will qualify as recipients, see Saur v Probes, 190 Mich App 636, 641; 476
NW2d 496 (1991) (construing former MCL 330.1700, which defined recipient in a substantially
similar way to present MCL 330.1100c). Hence, the duty imposed under the first sentence
of MCL 330.1946(1) applies only to mental-health professionals who are treating patients who
are also “recipients” within the meaning of MCL 330.1100c(12). Accordingly, the second
sentence necessarily only modified the common-law duties applicable to mental-health
professionals who are treating recipients.
In the present case, there is no evidence that Brooks was a recipient within the meaning
of MCL 330.1100c(12) during the period defendants treated him. Because Brooks was not a
recipient, MCL 330.1946(1) did not modify defendants’ common-law duty to protect third
parties from Brooks. Consequently, MCL 330.1946(1) did not abrogate or modify plaintiff’s
Even if MCL 330.1946(1) could be said to apply to all patients, even those patients who
do not qualify as recipients, by its own terms, MCL 330.1946(1) only modifies a mental-health
professional’s common-law duty to warn or protect third parties from the acts of others. It does
not apply to a mental-health professional’s duty to refrain from harming a third party through his
or her own negligent acts—even where the ultimate harm is perpetrated by the mental-health
professional’s patient. See Williams, supra at 498 (noting that courts have made a distinction
between “misfeasance, or active misconduct causing personal injury, and nonfeasance, which is
passive inaction or the failure to actively protect others from harm”). As already noted, all
persons have a common-law duty to refrain from actively endangering others by their conduct.
Moning, supra at 437. This includes actions that foreseeably lead to the infliction of harm by
others against a third party. See Davis v Thornton, 384 Mich 138; 180 NW2d 11 (1970) (holding
that the defendant may be liable for the harms inflicted by a group of minors who stole
defendant’s car after he left the car unlocked with the keys inside); Ross v Glaser, 220 Mich App
183; 559 NW2d 331 (1996) (holding that a father may be civilly liable for a murder committed
by his son, who had a history of mental illness, where the father provided a loaded gun to his son
while the son was in an agitated state); Pamela L v Farmer, 112 Cal App 3d 206, 209-211; 169
Cal Rptr 282 (1980) (stating that a wife, who knew that her husband had a history of molesting
children, could be liable for placing minors in danger by encouraging them to use her home and
swimming pool while she was at work and her husband was home alone); Bryson v Banner
Health Sys, 89 P3d 800, 804-805 (Alas, 2004) (recognizing that a treatment provider may be
liable for placing a known rapist into a therapy group with a woman and then encouraging them
to interact outside group therapy). Under the majority’s interpretation of MCL 330.1946(1),
except to the extent provided by MCL 330.1946(1), a mental-health professional would have no
common-law duty to refrain from negligently placing another in danger of harm at the hands of
that mental-health professional’s patients. Thus, a psychiatrist would have no duty to refrain
from leaving his keys in his unlocked car for a patient to steal, see Thornton, supra, to refrain
from giving a loaded weapon to an agitated patient, see Ross, supra, to refrain from encouraging
minors to associate with a pedophile patient, see Pamela L, supra, or from placing a known
rapist-patient into group therapy with a woman and then encouraging her to associate with the
rapist-patient outside group sessions, Bryson, supra. I cannot give MCL 330.1946(1) such a
broad interpretation. Rather, I conclude that MCL 330.1946(1) does not abrogate a mentalhealth professional’s duty to refrain from actively placing a third party in danger of harm at the
hands of the mental-health professional’s patients.
Because MCL 330.1946 does not apply to patients such as Brooks, who are not also
recipients, and does not affect a mental-health professional’s common-law duty to refrain from
actively placing another in danger of harm at the hands of a patient, plaintiff’s claim that
defendants breached their duty to properly provide plaintiff with a safe clinical environment for
her treatment remained viable. Consequently, I conclude that the trial court did not err when it
refused to grant defendants’ requests for relief premised on the theory that they had no commonlaw duty to protect plaintiff beyond that imposed by MCL 330.1946. Because my resolution of
this issue is not dispositive of the appeal, I will address the remaining issues raised by the parties.
II. Directed Verdict of the Statutory Duty to Warn
Defendants argue that the trial court erred when it declined to grant defendants’ motions
for a directed verdict and judgment notwithstanding the verdict (JNOV) of plaintiff’s claim
under MCL 330.1946. This Court reviews de novo a trial court’s decisions regarding a party’s
motions for directed verdict and JNOV. Reed v Yackell, 473 Mich 520, 528; 703 NW2d 1
As already noted, I believe that MCL 330.1946 only applies to patients who are also
recipients. Because Brooks was not a recipient, defendants had no duty to warn or protect
plaintiff under MCL 330.1946. For that reason, I agree that the trial court should have granted
defendants’ motion for a directed verdict on that theory of liability. However, because this error
was harmless, I conclude that it does not warrant a new trial.
Plaintiff originally sued under two separate theories of liability: statutory liability for
failure to warn under MCL 330.1946 and common-law medical malpractice for failure to warn.
However, at trial, plaintiff argued that defendants were liable because they breached the
professional standard of care by failing to provide a safe clinical environment for plaintiff’s
treatment. To this end, most of the testimony and evidence presented at trial dealt with the
behavior and symptoms exhibited by Brooks and how defendants responded to those behaviors
and symptoms. Indeed, plaintiff’s counsel spent the majority of his closing argument discussing
the evidence that Brooks had a serious mental disorder and, as a result, should never have been
assigned to group therapy.
In addition, although plaintiff presented MCL 330.1946 as a separate theory supporting
liability, the trial court did not instruct the jury that a breach of the duty imposed by MCL
330.1946 could alone support a verdict against defendants. Instead, the trial court instructed the
jury that, “[i]f you find that any of the Defendants violated this statute before or at the time of the
occurrence, such violation is evidence of negligence which you should consider, together with all
of the evidence, in deciding whether the Defendant was negligent.” Further, the trial court
instructed the jury that “professional negligence or malpractice” means “the failure to do
something which a psychiatrist of ordinary learning, judgment or skill in this community or a
similar one would do, or the doing of something which is – a psychiatrist of ordinary learning,
judgment or skill would not do under the same or similar circumstances you find to exist in this
case.” Hence, the only theory of liability before the jury was medical malpractice. Nevertheless,
because the duty imposed by MCL 330.1946 did not apply to the facts of this case, the trial court
erred when it instructed the jury that it could consider a breach of this statute to be evidence that
defendants were negligent.
On appeal, defendants argue that, if this Court concludes that the jury should not have
been instructed on MCL 330.1946, this Court must grant defendants a new trial because “it
cannot be known whether the jury awarded damages based on the unsupported statutory claim
. . . .” I do not agree. The trial court did not instruct the jury on separate theories of liability.
Hence, defendants’ reliance on authorities discussing the erroneous submission of a claim on a
general verdict form is inapposite. See Tobin v Providence Hosp, 244 Mich App 626; 624
NW2d 548 (2001), and Berwald v Kasal, 102 Mich App 269; 301 NW2d 499 (1980). Instead,
the relevant inquiry is whether the trial court’s erroneous instruction caused defendants such
unfair prejudice that it would be “inconsistent with substantial justice” to refuse to grant
defendants a new trial. Ward v Consolidated R Corp, 472 Mich 77, 84; 693 NW2d 366 (2005);
MCR 2.613(A). Because the overwhelming evidence supported plaintiff’s medical malpractice
claim and there was little evidence involving plaintiff’s claim under MCL 330.1946, I cannot
conclude that this instruction caused defendants unfair prejudice.
In his video trial deposition, Dr. Mark Fettman, who is plaintiff’s psychiatric expert,
testified that a psychiatrist has a duty to take reasonable precautions for the protection of
patients. Included within this duty is the requirement that the psychiatrist assess a patient to
determine if the patient is a suitable candidate for group therapy before placing him or her into a
group. Once a patient has been placed in group therapy, the psychiatrist has a further duty to
continually assess the patient to ensure that the patient remains suitable for group therapy.
Consistent with this testimony, plaintiff’s proofs largely consisted of evidence concerning what
defendants knew or should have known about Brooks’s mental health and how defendants used
Testimony and records submitted to the jury established that Brooks was institutionalized
after he attempted suicide in 1992. Dr. Joseph Gluski testified that Brooks was referred to his
practice after Brooks left the group home. Gluski stated that he treated Brooks from April 1994
to October 1995. Gluski testified that Brooks was on antipsychotic medications when he arrived
at the practice and that he determined that Brooks should remain on antipsychotic medications
during treatment. Gluski acknowledged that he wrote in Brooks’s chart that Brooks had
mentally slipped back into 1992, which was the year he tried to commit suicide, around the time
that he ceased taking his medications. Gluski also testified that Brooks appeared to
misunderstand how he was being treated in group therapy and thought that the others were
conspiring against him. Gluski stated that Brooks abruptly stopped treatment in October 1995.
Gluski also described two incidents with Brooks returning to his office after treatment
was over. Gluski testified that in the summer of 1996, Brooks called and asked to have a
meeting with Gluski and Anika Kirby, the therapist who led Brooks’s group therapy sessions. At
the meeting, Brooks asked questions about Kirby’s ethnic background, which was Finnish.
Brooks had even brought a map of Finland with him.
Gluski further testified about an incident that occurred in the summer of 1997 or 1998.2
Gluski testified that Brooks barged into his office before normal office hours and began
searching the office for Kirby. Gluski stated that Brooks seemed agitated and thought he might
get physical. Gluski testified that Brooks seemed furious and made comments about his
treatment in group therapy. Gluski left the office and walked to a nearby restaurant, but Brooks
followed him and did not leave until Gluski called the police. Gluski acknowledged that the
police report indicated that Gluski told the officer that Brooks had said, “You better run.” The
report also indicated that Brooks told him, “I want to get your partner.”
Gluski testified that, after Brooks began treating with defendants, Reuvan called about
Brooks. Gluski said he told Reuvan about the incidents with Brooks and warned him that
Brooks was dangerous. Gluski said he also told Reuvan that, if Reuvan decided to treat Brooks,
Brooks should be in individual treatment for one full year and needed to be on medication.
Gluski stated that he was so concerned about the situation that he called Reuvan the next day to
reiterate that Reuvan should be careful.
In addition to Gluski’s testimony, plaintiff presented evidence that, on October 19, 1998,
Brooks came to defendants’ office and told Joseph Froslie, who was a therapist at the practice,
that he had obtained a gun and driven to New Hampshire with an intent to kill his ex-girlfriend’s
mother and then commit suicide. In response to this revelation, Froslie asked Brooks to bring the
gun into the office, which Brooks did. After Brooks brought the gun to the office, Froslie
contacted Dr. Leora Bar-Levav (Leora), who was Reuvan’s daughter and also a psychiatrist at
Reuvan’s practice. Leora performed a general mental-status examination of Brooks. Although
Leora prescribed a two-week supply of medication after this incident and claimed to have
performed further assessments of Brooks, the jury heard evidence that these subsequent
assessments were not documented and that no one at defendants’ practice recalled ever having a
specific discussion about Brooks. Hence, the jury could have concluded that no other steps were
taken to ensure that Brooks was not a danger to himself or others. Notwithstanding these prior
incidents, in December 1998, Reuvan decided to place Brooks in group therapy. Testimony
established that Reuvan made the decision after consulting with the other staff members.
Froslie testified that Brooks exhibited some narcissistic behavior and also had
disturbances in social functioning. James Stanislaw, another group therapist at the practice,
testified that Brooks had some symptoms that were consistent with paranoid schizophrenia,
including confused thinking and suspiciousness, and that he was not always appropriate or
responsive in group therapy. Froslie also indicated that Brooks sometimes did not appear to
understand the group-therapy process. Brooks was finally discharged from the practice in March
1999 after Reuvan prescribed medication to Brooks, which Brooks refused to take.
This evidence is compelling proof that defendants knew or should have known that
Brooks posed a danger to the other patients in his therapy group and, therefore, should not have
Gluski stated that he recalled that it occurred in 1997, but the associated police report was dated
July 1, 1998.
been placed in the group. In contrast, the evidence tending to support plaintiff’s claim under
MCL 330.1946 was limited. Hence, it is not likely that the jury relied on a purported violation of
MCL 330.1946 to conclude that defendants breached the standard of care. Furthermore, the
testimony concerning threats was relevant to the underlying medical malpractice claim, even
though the evidence was inadequate to establish the existence of a duty imposed under MCL
330.1946, because the threatening behavior is additional evidence from which a jury could
conclude that defendants failed to continually assess whether Brooks should be in group therapy.
Yet, by instructing the jury that it could only consider threats under MCL 330.1946 as evidence
of negligence, the jury may have concluded that it could not consider the fact that Brooks
expressed threatening feelings unless those threats constituted a violation of MCL 330.1946.
Hence, the instruction may have benefited defendants’ case. For this reason, I would conclude
that the erroneous instruction did not prejudice defendants and that a new trial is not warranted
on that basis. Ward, supra at 84.
III. Common-Law Duty and Proximate Cause
Defendants also argue that Brooks’s criminal conduct was not foreseeable. Because
Brooks’s conduct could not be foreseen, defendants had no duty to protect plaintiff and any
failures on their part were not the proximate cause of plaintiff’s injuries. For these reasons,
defendants further argue, as a matter of law, they cannot be held liable for plaintiff’s injuries.
Again, I would disagree.
A. Standard of Review
Whether defendants owed a duty to plaintiff is a question of law, which this Court
reviews de novo. Fultz v Union-Commerce Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004).
B. Defendants’ Professional Duty to Plaintiff
It is well established that a “negligence action may only be maintained if a legal duty
exists which requires the defendant to conform to a particular standard of conduct in order to
protect others against unreasonable risks of harm.” Riddle v McLouth Steel Products Corp, 440
Mich 85, 96; 485 NW2d 676 (1992). “‘Duty’ comprehends whether the defendant is under any
obligation to the plaintiff to avoid negligent conduct; it does not include—where there is an
obligation—the nature of the obligation: the general standard of care and the specific standard of
care.” Moning, supra at 437. Courts will traditionally examine various competing policy factors
in determining whether a duty should be imposed. These include: “‘“the relationship of the
parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk
presented.”’” In re Certified Question from the Fourteenth District Court of Appeals of Texas,
479 Mich 498, 505; 740 NW2d 206 (2007), quoting Dyer v Trachtman, 470 Mich 45, 49; 679
NW2d 311 (2004), quoting Murdock, supra at 53. For purposes of duty, a risk is foreseeable if a
reasonable person could anticipate that a particular event would occur and that the event posed a
risk of injury or harm to a person or property. Samson v Saginaw Professional Bldg, Inc, 393
Mich 393, 406; 224 NW2d 843 (1975).
In cases involving a traditional relationship between a medical professional and a patient,
the law imposes a duty on the medical professional to treat the patient within the standard of care
generally applicable to medical professionals. See Dyer, supra at 49-50. It is undisputed that
defendants had an established psychiatrist-patient relationship with plaintiff. Given this
relationship, defendants generally owed a duty to treat plaintiff within the standard of care
applicable to medical professionals. Id. Hence, defendants were required 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 v Oakpointe
Villa Nursing Centre, Inc, 471 Mich 411, 424; 684 NW2d 864 (2004), quoting Adkins v
Annapolis Hosp, 116 Mich App 558; 323 NW2d 482 (1982); see also MCL 600.2912a
(codifying the standard of care).
At some point in the course of plaintiff’s treatment, defendants made the decision to treat
plaintiff with group therapy and specifically to include Brooks in plaintiff’s group. The decision
to pursue a particular course of treatment involves considerations of professional medical
judgment that implicate defendants’ duty to provide proper medical care to plaintiff. See Dorris
v Detroit Osteopathic Hosp Corp, 460 Mich 26, 46-47; 594 NW2d 455 (1999). In the group
therapy setting, it is foreseeable that a patient who is not mentally healthy enough to participate
in group therapy may be or become a danger to the other members of the group. Because
plaintiff was among the class of persons who could foreseeably be harmed by defendants’
decision to place Brooks in group therapy, as a matter of law, defendants owed plaintiff a duty to
act within the applicable standard of care. See Moning, supra at 439 (noting that a duty will not
be imposed unless “it is foreseeable that the actor’s conduct may create a risk of harm to the
victim”). Thus, a mental-health professional’s duty to treat a patient within the applicable
standard of care includes a duty to take reasonable steps to ensure the safety of its patients during
treatment. This includes a duty to take reasonable steps to ensure that the patients placed in
group therapy do not pose a danger to the other members of the group. Although it is for the
court to decide questions of duty,3 “the jury decides whether there is cause in fact and the
specific standard of care: whether defendants’ conduct in the particular case is below the general
standard of care, including . . . whether in the particular case the risk of harm created by the
defendants’ conduct is or is not reasonable.” Id. at 438. Accordingly, it was for the jury to
decide whether defendants’ decision to place Brooks in group therapy with plaintiff fell below
the general standard of care applicable to medical professionals and whether that decision was
the cause of plaintiff’s injuries.
Under some circumstances, whether a defendant owes a duty to the plaintiff will turn on factual
findings. In those cases, the jury must make the necessary factual findings. See MacDonald v
PKT, Inc, 464 Mich 322, 339; 628 NW2d 33 (2001) (noting that the plaintiff presented sufficient
factual evidence from which a jury could conclude that plaintiff was a member of the class of
persons to which the landlord owed a duty, but concluding that defendant satisfied its duty by
having the police present); Bonin v Gralewicz, 378 Mich 521, 527-528; 146 NW2d 647 (1966)
(noting that whether the defendant had knowledge that there was a foreseeable risk of harm to
others was a question of fact for the jury).
C. Foreseeability as an Element of Proximate Cause
In order to prevail in an ordinary negligence action, the plaintiff must also prove that the
defendant’s breach of duty proximately caused the plaintiff’s injuries. Case v Consumers Power
Co, 463 Mich 1, 6; 615 NW2d 17 (2000). Likewise, in a medical malpractice action, the plaintiff
must prove that the defendant’s breach of the applicable standard of care proximately caused the
plaintiff’s injuries. Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004). Unless
reasonable minds could not differ regarding the proximate cause of the plaintiff’s injury,
proximate cause is a question for the jury. Nichols v Dobler, 253 Mich App 530, 532; 655
NW2d 787 (2002). Proximate cause entails proof of two separate elements: (1) cause in fact and
(2) legal or proximate cause. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475
The cause in fact element generally requires showing that “but for” the
defendant’s actions, the plaintiff’s injury would not have occurred. On the other
hand, legal cause or “proximate cause” normally involves examining the
foreseeability of consequences, and whether a defendant should be held legally
responsible for such consequences. A plaintiff must adequately establish cause in
fact in order for legal cause or “proximate cause” to become a relevant issue. [Id.
at 163 (citations omitted).]
In the present case, the “cause in fact” element is not in dispute. Rather, defendants
argue that plaintiff failed to prove proximate cause as a matter of law. Specifically, defendants
contend that criminal acts are not foreseeable and that Brooks’s criminal acts in particular were
too remote in time from defendants’ alleged breach to constitute a proximate cause of plaintiff’s
In order for negligence to be the legal or proximate cause of an injury, “‘the injury must
be the natural and probable consequence of a negligent act or omission, which under the
circumstances, an ordinary prudent person ought reasonably to have foreseen might probably
occur as a result of his negligent act.’” Paparelli v Gen Motors Corp, 23 Mich App 575, 577;
179 NW2d 263 (1970), quoting Nielsen v Henry H Stevens, Inc, 368 Mich 216, 218; 118 NW2d
397 (1962). There may be more than one proximate cause of an injury. Allen v Owens-Corning
Fiberglas Corp, 225 Mich App 397, 401-402; 571 NW2d 530 (1997). “When a number of
factors contribute to produce an injury, one actor’s negligence will not be considered a proximate
cause of the harm unless it was a substantial factor in producing the injury.” Brisboy v
Fibreboard Corp, 429 Mich 540, 547; 418 NW2d 650 (1988).
With regard to proximate cause, defendants argue that criminal acts are not foreseeable as
a matter of law. However, courts in Michigan have long recognized that criminal acts by third
parties can be foreseeable. See Hersh v Kentfield Builders, Inc, 385 Mich 410, 415; 189 NW2d
286 (1971) (stating that, whether the defendant employer knew or should have known of its
employee’s dangerous propensities and, therefore, should be held liable for the employee’s
criminal assault, was a question for the jury); Samson, supra at 407-408, 409 (stating that
whether the criminal acts of a patient-visitor to the landlord’s premises were foreseeable was
properly a jury question); Thornton, supra at 149 (stating that reasonable people might conclude
that the defendant’s act of leaving his keys in an unlocked car, which was later stolen and
involved in an accident, was “not too remote a cause of the plaintiff’s injuries and that the
joyrider’s intervention did not sever that causal connection”); Ross, supra. Further, although the
length of time between the shooting and Brooks’s departure from defendants’ care is relevant to
whether defendants’ placement of Brooks in plaintiff’s group constituted a proximate cause of
plaintiff’s injuries, it is not dispositive. See Michigan Sugar Co v Employers Mut Liability Ins
Co of Wisconsin, 107 Mich App 9, 15; 308 NW2d 684 (1981) (“Lapse of time does not foreclose
the cause of an injury from being its proximate cause.”). Plaintiff presented evidence that
defendants knew or should have known that Brooks would form improper emotional attachments
to persons in his group therapy and that he might seek out those persons long after the
termination of his participation in the group. Given this evidence, a reasonable jury could
conclude that defendants’ breach of the standard of care foreseeably included the possibility that
Brooks would return long after the conclusion of his participation in group therapy and harm
persons with whom he formed these attachments. Therefore, the lapse of time alone was
insufficient to render Brooks’s actions unforeseeable as a matter of law. Id. Because a
reasonable jury could conclude that defendants proximately caused plaintiff’s injury by placing
Brooks in the therapy group or by failing to take reasonable precautions to protect plaintiff from
Brooks, the trial court did not err in refusing to grant defendants’ motion for JNOV on this basis.
Nichols, supra at 532.
IV. Improper Testimony Concerning Defendants’ Duty to Brooks
Defendants next argue that the trial court improperly permitted plaintiff to present
evidence that defendants breached their duty to treat Brooks within the applicable standard of
care. I find no merit to this argument.
Plaintiff did not present evidence or argue that defendants failed to properly treat Brooks.
Plaintiff presented evidence that Brooks had symptoms and exhibited behavior that indicated that
Brooks was not suitable for group therapy. Plaintiff further presented evidence that Brooks was
placed in group therapy without first requiring him to go through a lengthy period of individual
treatment and taking proper medication. Although this evidence permits an inference that
defendants failed to properly treat Brooks, the evidence was relevant to plaintiff’s theory of the
case. MRE 401; MRE 402. Therefore, there was no error.
V. Great Weight of the Evidence
Defendants next argue that the verdict against Dr. Leora Bar-Levav was against the great
weight of the evidence. Again, I disagree.
This Court reviews a trial court’s denial of a motion for a new trial on the ground that the
jury’s verdict was against the great weight of the evidence for an abuse of discretion. Campbell
v Sullins, 257 Mich App 179, 193; 667 NW2d 887 (2003). In deciding whether to grant a motion
for a new trial, the trial court’s function is to “determine whether the overwhelming weight of the
evidence favors the losing party.” Phinney v Perlmutter, 222 Mich App 513, 525; 564 NW2d
532 (1997). In reviewing the trial court’s decision, this Court will give substantial deference to
the trial court’s conclusion that a verdict was not against the great weight of the evidence. Id.
At trial, Fettman testified that the applicable standard of care required defendants to take
steps to ensure that the clinical environment was safe for plaintiff’s treatment. Fettman stated
that this required defendants to assess Brooks’s suitability for group therapy before placing him
in a therapy group and to continually assess him thereafter to determine whether he remained
suitable for group therapy. Fettman testified that defendants breached the standard of care by
placing Brooks in a therapy group when there were clear signs that he was not suitable for group
therapy and by failing to continually assess and communicate about Brooks’s continued
suitability for group therapy.
Although Fettman indicated that he understood the evidence to show that Reuvan had the
final decision regarding the placement of Brooks in group therapy, there was testimony that this
decision was made after receiving input from all the staff members. The jury also heard
evidence that Leora performed the assessment of Brooks after he disclosed that he had traveled
to New Hampshire to kill his ex-girlfriend’s mother. There was also evidence that suggested that
Leora failed to make any subsequent assessments. Finally, evidence indicated that Leora
participated in several of Brooks’s group therapy sessions and yet failed to make any of the
continuing assessments that Fettman testified would be required with a patient like Brooks.
From this evidence, a reasonable jury could conclude that Leora did participate to some
extent in the decision to place Brooks in group therapy. A reasonable jury could also conclude
that Leora breached the standard of care by failing to perform additional assessments of Brooks
after the gun incident and by failing to continually reevaluate whether Brooks should be in group
therapy. Finally, a reasonable jury could conclude that these breaches of the standard of care
proximately caused plaintiff’s injuries.
Given this evidence, I cannot conclude that the trial court abused its discretion by
declining to grant defendants’ motion for a new trial on the basis that the verdict against Leora
was not against the great weight of the evidence.
VI. Testimony Concerning Brooks’s Manuscript
Defendants next argue that the trial court improperly permitted plaintiff’s counsel to
make remarks and present testimony concerning papers sent by Brooks to Reuvan. Defendants
further contend that those remarks and testimony were prejudicial and warrant a new trial. I
disagree. Even if the trial court properly determined that these papers should be excluded from
evidence, the few references made to them at trial did not prejudice defendants. Therefore, a
new trial is not warranted on this basis.
Before trial, defendants moved in limine to preclude plaintiff from eliciting testimony
about or referring to a document that the parties referred to as the “manuscript.” The manuscript
contained Brooks’s ramblings about Reuvan’s therapy techniques and Brooks’s belief that his
therapists “used” him to benefit the other members of the therapy group. In the manuscript,
Brooks wrote about his desire to seek revenge, but did not directly threaten any one person or
group. Brooks mailed the manuscript to Reuvan one day before the shooting. In their motion,
defendants argued that evidence and arguments concerning the manuscript should be precluded
because the manuscript was not relevant. Specifically, defendants noted that the manuscript
arrived after Brooks’s placement in group therapy and contained no threat within the meaning of
MCL 330.1946. Defendants also contended that there was no evidence that Reuvan read it. For
these reasons, defendants argued, it could not be used to support any of plaintiff’s claims and
should not be referred to or admitted into evidence. The trial court denied defendants’ motion in
At trial, defendants again moved to have the manuscript excluded. The trial court agreed
that the manuscript was not relevant and also concluded that it was more inflammatory than
probative. Therefore, the trial court excluded the manuscript. In addition, the trial court
precluded plaintiff’s counsel from asking any questions about the manuscript.
Although the trial court excluded the manuscript, plaintiff’s counsel had already
commented on the manuscript during his opening statement. Specifically, plaintiff’s counsel
stated that Brooks sent
a manuscript, priority mail, addressed to Dr. Bar-Levav. It was received the next
day. Maria Attard will tell you she handed the package to Dr. Bar-Levav. She’s
unsure if she opened it or he opened it, but she is certain of one thing, nobody
reads his mail but him.
At a later point in the day, Dr. Bar-Levav gave the manuscript back to
Maria and said he’s [sic] read it over the weekend. The defendants will tell you
that Dr. Bar-Levav didn’t have any idea what was inside the package. However,
before the shooting took place, Mr. Baker will tell you that he recalls hearing that
a manuscript had been received and he was advised that it was a confused
document based on something Brooks had read in Dr. Bar-Levav’s book.
This is not something he was advised of in a formal meeting, Mr. Baker
will tell you, but there was a buzz around the office, people were talking about the
manuscript. What was in this manuscript, all the experts agree, is a very troubled,
very confused writing that demonstrated a psychotic episode. The manuscript
talks about revenge. The manuscript talks about Brooks feeling that he was being
used in therapy.
Plaintiff’s counsel also stated that defendants “failed to warn [plaintiff] that Brooks had made
threats against her group after receiving the manuscript . . . .”4
After the trial court’s ruling to preclude testimony concerning the manuscript, there were
two brief references to the manuscript. First, a witness who testified by deposition referred to the
timing of the arrival of the package. Second, plaintiff’s counsel referred to the fact that the
manuscript had not been submitted to the jury. He stated:
Plaintiff’s counsel also noted that if the jury found that there was “no duty to warn about the
manuscript,” but nevertheless concluded that defendants had a “duty to keep the clinic safe, then
you must enter a decision of negligence.”
[b]ut you may have a question in your mind, where[’s] the manuscript, and
you have heard reference throughout the trial, but it hasn’t come into evidence.
Those are the decisions, as the Judge instructed you at the beginning, he’s
going to tell you at the end, were made outside of your presence, and that’s
without respect to whether or not an attorney or myself wanted to actually present
this certain evidence. For legal reasons, sometimes it doesn’t come into evidence.
You can’t hold that against us. And at the time when we thought it was coming
in, we told you you were going to see it, but that changed. But as the Judge will
tell you, if he makes certain decisions on things, its not to be held against the
On appeal, defendants argue that these references to the manuscript prejudiced defendant
and warrant a new trial. However, defendants did not object to plaintiff’s opening or closing
remarks. Further, when redacting the deposition testimony of the witness at issue, defendants’
counsel specifically asked to have certain references to the manuscript removed, which the trial
court granted. But defendants’ counsel did not object to or request a redaction of the deposition
testimony cited on appeal. Hence, these claims of error are unpreserved.
An error in the admission or exclusion of evidence “will not warrant appellate relief
‘unless refusal to take this action appears . . . inconsistent with substantial justice,’ or affects ‘a
substantial right of the [opposing] party.’” Craig, supra at 76, quoting MCR 2.613(A) and MRE
103(a). Unpreserved claims that an attorney committed misconduct are analyzed to determine
whether the conduct “‘may have caused the result or played too large a part and may have denied
a party a fair trial.’” Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 501; 668 NW2d 402
(2003), quoting Reetz v Kinsman Marine Transit Co, 416 Mich 97, 103; 330 NW2d 638 (1982).
The brief mention of the manuscript that was not redacted from the deposition testimony
could not have affected the jury’s verdict. Therefore, even if it were plain error to permit its
submission to the jury, it would not warrant any relief. MCR 2.613(A). Likewise, taken as a
whole, plaintiff’s attorney’s remarks were minimally prejudicial and could not have had a
controlling influence on the verdict. Wiley, supra at 505. Furthermore, the trial court instructed
the jury that the attorneys’ comments were not evidence. This instruction cured any minimal
prejudice that these comments may have had. Tobin, supra at 641. There was no error
warranting the requested relief.
VII. The Applicable Damages Cap
Finally, defendants argue that the trial court erred when it applied the damages cap
imposed by MCL 600.1483 that was in effect on the date that the trial court entered the judgment
against defendants rather than the cap in effect on the date plaintiff filed her suit. I disagree.
The amount of the cap applicable to an award of noneconomic damages is a matter of
statutory interpretation that this Court reviews de novo. See Shinholster, supra at 548.
MCL 600.1483(1) limits the total amount of noneconomic damages that may be
recovered by all plaintiffs as a result of negligence arising out of an action alleging medical
malpractice. The cap was initially set at $280,000 for injuries, such as those at issue in this case,
that do not meet the exceptions stated under MCL 600.1483(1)(a) to (c). However, under MCL
600.1483(4), the state treasurer is required to adjust this amount annually to reflect changes in
the consumer price index. Although the statute provides for the annual adjustment of the cap, it
does not address how this adjustment affects suits that are pending but have not yet been reduced
In examining the applicability of the damages cap to wrongful death actions arising from
medical malpractice, our Supreme Court noted that “[o]nly after the court or jury has, in its
discretion, awarded damages as it considers fair and equitable does the court, pursuant to [MCL
600.6304(5)], apply the noneconomic damages cap of [MCL 600.1483].” Jenkins v Patel, 471
Mich 158, 172; 684 NW2d 346 (2004), citing MCL 600.6098(1) and MCL 600.6304(5). The
Court further noted that the damages cap does not impinge on the jury’s right to determine the
amount of damages, but rather only limits the legal consequences of the jury’s finding by
limiting the amount of the judgment on the verdict. Id. at 173. Hence, our Supreme Court
recognized that the cap only applies to a judgment rendered after a verdict. Because the cap
applies to judgments, it follows that the amount of the cap is the amount in effect on the date the
judgment is entered. See Wessels v Garden Way, Inc, 263 Mich App 642, 652-654; 689 NW2d
526 (2004) (holding that the cap applicable to product liability actions is determined by the date
of the judgment).
The trial court did not err in applying the 2005 cap.
VIII. Calculation of Prejudgment Interest
On cross-appeal, plaintiff argues that the trial court did not properly calculate plaintiff’s
prejudgment interest. I agree.
This Court reviews de novo questions of statutory interpretation such as the proper
application of MCL 600.6013 and MCL 600.1483. Shinholster, supra at 548.
When rendering its verdict, the jury had to make specific findings of fact regarding the
amount of past economic damages, past noneconomic damages, future economic damages and
future noneconomic damages that plaintiff suffered. MCL 600.6305(1). Future damages are
defined to be “damages arising from personal injury which the trier of fact finds will accrue after
the damage findings are made . . . .” MCL 600.6301(a). Noneconomic damages are defined as
“damages or loss due to pain, suffering, inconvenience, physical impairment, physical
disfigurement, or other noneconomic loss.” MCL 600.1483(3). In the present case, the jury
found that plaintiff suffered a total of $600,000 in past medical expenses5 and $400,000 in past
noneconomic damages. The jury also found that plaintiff would suffer $1,040,000 in future
noneconomic damages. The verdict form did not provide for future economic damages.
This amount was reduced by the trial court to $44,338.28, which was the amount of medical
expenses for which plaintiff presented evidence at trial.
Once the jury awarded damages, plaintiff was entitled to interest on her money judgment.
MCL 600.6013(1). Although MCL 600.6013(8) provides that interest “is calculated on the entire
amount of the money judgment, including attorney fees and other costs” from the filing of the
complaint, MCL 600.6013(1) specifically excludes interest “on future damages from the date of
filing the complaint to the date of entry of the judgment.” Hence, under a plain reading of MCL
600.6013, plaintiff would normally be entitled to interest on the full amount of her past
noneconomic damages. However, in a medical malpractice action, the trial court is required to
reduce an award of damages to “the amount of the appropriate limitation set forth in [MCL
600.1483].” MCL 600.6304(5). Under MCL 600.1483(1), the total noneconomic damages
recoverable by plaintiff could not exceed $371,800. Because the jury found that plaintiff
suffered more than $1.4 million in total noneconomic damages, the trial court had to reduce the
total award for noneconomic damages to $371,800. By its plain terms, MCL 600.1483(1)
applies to “the total amount of damages for noneconomic loss recoverable by all plaintiffs . . . .”
However, the Legislature failed to address how MCL 600.1483(1) should be applied to separate
awards of past and future noneconomic damages. This legislative silence poses no problem in
cases where the jury finds either past or future noneconomic damages but not both, or where the
combined total of past and future noneconomic damages does not exceed the applicable cap.6
However, where the jury finds both past and future noneconomic damages whose combined total
exceeds the cap provided by MCL 600.1483, it becomes essential to a proper determination of
prejudgment interest under MCL 600.6013(1) to first determine how the cap applies to the
individual awards of past and future noneconomic damages.
Because MCL 600.1483 and MCL 600.6013 both relate to the trial court’s entry of a
judgment after a jury renders a verdict, they must be read together as though constituting one
law. State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998). Nevertheless, it is
clear that the statutes serve distinct purposes. The Legislature enacted MCL 600.1483 to control
increases in health care costs by limiting the liability of medical care providers. Zdrojewski v
Murphy, 254 Mich App 50, 80; 657 NW2d 721 (2002). This purpose is accomplished by
limiting the amount of compensation that a plaintiff may obtain for noneconomic damages. In
contrast, MCL 600.6013 serves two purposes: (1) to compensate the prevailing party for the loss
of the use of funds awarded as a money judgment and for the costs of bringing a court action and
(2) to provide an incentive for prompt settlement. Old Orchard by the Bay Assoc v Hamilton
Mut Ins Co, 434 Mich 244, 252-253; 454 NW2d 73 (1990), overruled on other grounds by
Holloway Constr Co v Oakland Co Bd of Co Rd Comm’rs, 450 Mich 608, 615-616 (1996). With
regard to the latter purpose, our Supreme Court explained that the “award of statutory
In cases where the jury finds only past noneconomic damages, the plaintiff would clearly be
entitled to prejudgment interest on the full amount. MCL 600.6013(1). Likewise, in cases where
the jury finds only future noneconomic damages, the plaintiff would clearly not be entitled to any
prejudgment interest on that amount. Id. Finally, where a jury finds both past and future
noneconomic damages, but the combined total does not exceed the cap provided by MCL
600.1483, the trial court would not reduce either the past or future economic damages and the
plaintiff would be entitled to prejudgment interest on the full amount of the past noneconomic
prejudgment interest . . . serves a distinct deterrent function by both encouraging settlement at
an earlier time and discouraging a defendant from delaying litigation solely to make payment at a
later time.” Old Orchard, supra at 253. These purposes are accomplished under MCL 600.6013
by increasing the costs that a defendant will have to pay if the plaintiff prevails. Although these
statutes appear to conflict, they can be construed together in a way that substantially preserves
the purpose of each.
It must be noted that MCL 600.1483 does not limit all forms of compensation that a
defendant may be required to pay after a verdict in favor of the plaintiff. The statute does not
limit economic damages and does not purport to limit interest, attorney fees, or other costs. In
contrast, MCL 600.6013 clearly requires compensation in the form of interest on the entire
amount of the money judgment, which excludes future damages, but includes attorney fees and
other costs. See MCL 600.6013(8). Thus, MCL 600.6013 has broader application than MCL
600.1483. Further, application of the cap provided by MCL 600.1483 directly and substantially
affects the compensatory and deterrent effects of MCL 600.6013, while application of MCL
600.6013, which is based on the total damages, attorney fees, and costs, only indirectly affects
the purpose of MCL 600.1483. Therefore, absent any guidance from the statutory language, I
conclude that MCL 600.1483 should be construed in a way that minimizes its overall effect on a
plaintiff’s ability to receive the compensation required by MCL 600.6013. See Denham v
Bedford, 407 Mich 517, 528-529; 287 NW2d 168 (1980) (examining a prior version of MCL
600.6013 and noting that the prejudgment interest statute is remedial and entitled to liberal
In the present case, the trial court determined that plaintiff would not be entitled to
prejudgment interest on the full amount of the capped noneconomic damages award. Instead, the
trial court determined that plaintiff would be entitled to interest on that portion of the capped
damages equal to the ratio of past noneconomic damages to future noneconomic damages found
by the jury. Applying this formula to the $371,800 noneconomic damages cap, the trial court
concluded that $140,949.38 of the capped amount represented past noneconomic damages and
$230,850.62 represented future noneconomic damages.
Although this solution appears equitable on its face, it is clear from its application that it
significantly undermines the remedial purposes of MCL 600.6013. Future damages include
damages for harm that the plaintiff will suffer during his or her remaining life. See Rickwalt v
Richfield Lakes Corp, 246 Mich App 450, 469; 633 NW2d 418 (2001); MCL 600.6305(2).
Further, future damages are reduced to a present cash value and payable with the judgment.
MCL 600.6306(1). Hence, a plaintiff will invariably receive timely compensation for his or her
future losses. In contrast, past damages reflect losses that the plaintiff has already incurred and
for which he or she has not yet received any compensation. Yet, under the trial court’s method,
plaintiff would receive less compensation for the injuries she has already suffered solely on the
basis that she would at some point in the future suffer further losses. Indeed, on this basis, the
trial court more than halved the amount of interest to which plaintiff was entitled under MCL
600.6013(1) for her past damages. This method of applying MCL 600.1483 defeats the purpose
of MCL 600.6013 without substantially furthering the purposes of the damages cap.
This problem can be avoided only by construing MCL 600.1483 in such a way as to
minimize its effect on the application of MCL 600.6013. Hence, I construe MCL 600.1483(1) to
reduce future noneconomic damages before past noneconomic damages. Where the jury finds
that the plaintiff has past noneconomic damages in excess of the applicable cap, as is the case
here, the plaintiff will be entitled to prejudgment interest on the full amount of the applicable cap
under MCL 600.6013(1). However, where the past noneconomic damages do not rise to the
level of the applicable cap, the plaintiff will only be entitled to interest on the actual amount of
the past noneconomic damages found by the jury. In this way, the plaintiff will be fully
compensated for the losses already suffered.
For these reasons, I would conclude that the trial court erred when it concluded that
plaintiff was only entitled to interest on a portion of the past noneconomic damages found by the
jury. Therefore, I would vacate the award of interest and remand this case to the trial court for
recalculation of the interest award consistent with my opinion.
For the reasons stated, I would conclude that there were no errors warranting a new trial.
However, I would conclude that the trial court erred when it determined that plaintiff was not
entitled to prejudgment interest on the full amount of the capped noneconomic damages.
Therefore, I would vacate the award of prejudgment interest and remand for recalculation of the
interest consistent with this opinion. In all other respects, I would affirm.
/s/ Michael R. Smolenski