KATHYANN MORSE V RICHARD FIDDIAN-GREEN MD
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STATE OF MICHIGAN
COURT OF APPEALS
KATHY ANN MORSE
UNPUBLISHED
November 22, 1996
Plaintiff-Appellant,
v
No. 182661
LC No. 86-003333-NM
RICHARD FIDDIAN-GREEN, M.D., GRACE
ELTA, M.D., and GARY FALK, M.D.,
Defendants-Appellees,
and
JOHN SHELLITO, M.D., ROBERT CILLEY, M.D.,
C. L. COOKINGHAM, M.D., H. D. APPELMAN,
M.D., J. D. SCHALDENBRAND, M.D.,
UNIVERSITY OF MICHIGAN, UNIVERSITY OF
MICHIGAN REGENTS, and UNIVERSITY
MEDICAL AFFILIATES, P.C.,
Defendants.
Before: White, P.J., and Griffin and D. C. Kolenda,* JJ.
PER CURIAM.
This medical malpractice case is before us for a second time following remand from our
Supreme Court to the trial court for reconsideration whether the three remaining defendants, Drs.
Fiddian-Green, Elta, and Falk, were entitled to governmental immunity. Plaintiff’s malpractice claims
arose from a January 24, 1984, surgery to remove her colon, rectum, and ileum.
Plaintiff appeals by right a circuit court order after remand that granted defendant doctors’
motion for summary disposition under MCR 2.116(C)(7) on the ground that the doctors’ actions
involved discretionary decision-making acts that entitled them to governmental immunity from tort
* Circuit judge, sitting on the Court of Appeals by assignment.
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liability. That same order also granted the doctors summary disposition under MCR 2.116(C)(10) on
the ground that the uncontradicted evidence revealed that the doctors had satisfied the relevant standard
of care for obtaining plaintiff’s informed consent, which entitled them to judgment as a matter of law.
We affirm.
I
Plaintiff’s complaint alleged that defendants incorrectly diagnosed her with ulcerative colitis,
advised her that she had “terminal ileitis,” which she believed to be a life-threatening condition requiring
immediate surgical intervention, violated the established standard of care, and breached the duty of
obtaining informed consent before performing surgery on her. In their respective answers, the doctors
denied plaintiff’s allegations, but pleaded no contest to the allegation that they owed plaintiff a duty, and
raised governmental immunity as an affirmative defense.
The circuit court granted the doctors summary disposition on the ground that they were entitled
to governmental immunity from tort liability and dismissed, with prejudice, plaintiff’s claims against the
doctors.
Plaintiff appealed, and this Court affirmed in part and reversed in part in an unpublished per
curiam opinion that was issued on July 16, 1992 (Docket No. 119932). The doctors appealed, and
our Supreme Court modified this Court’s judgment in lieu of granting leave, remanding the case to the
trial court for factual reconsideration in light of Green v Berrien General Hosp Auxiliary, Inc, 437
Mich 1, 9-14; 464 NW2d 703 (1990), and Canon v Thumudo, 430 Mich 326; 422 NW2d 688
(1988); Morse v Univ of Michigan Bd of Regents, 442 Mich 914; 503 NW2d 450 (1993).
Drs. Fiddian-Green, Elta, and Falk moved for summary disposition claiming that they were
protected by governmental immunity on the ground that they performed discretionary decision-making
acts rather than ministerial acts to obtain plaintiff’s informed consent, and each submitted an individual
affidavit to support their position. The court denied the doctors’ motion on the ground that a factual
dispute existed as to whether the doctors had obtained plaintiff’s informed consent in accord with the
relevant standard of care.
Five months later, the doctors again moved for summary disposition under subrules (C)(7) and
(10), claiming that governmental immunity protected them from tort liability when they performed
discretionary decision-making acts and that they were entitled to judgment as a matter of law because
they satisfied the relevant standard of care when they obtained plaintiff’s informed consent to the
surgery. The doctors supported their motion with selected pages from the deposition of plaintiff’s
expert witness, S. H. Saie, M.D., with exhibits consisting of plaintiff’s medical records, the consent form
that she signed before the surgery, and selected pages from plaintiff’s deposition testimony.
Plaintiff opposed the doctors’ motion, arguing that the doctors’ acts were ministerial ones and
that Dr. Saie’s deposition did not state that physicians had any discretion about obtaining informed
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consent. Plaintiff also submitted an affidavit in which she challenged the facts stated in the doctors’
affidavits.
The circuit court granted summary disposition, concluding that the doctors were protected by
governmental immunity under Green, supra, 17-19, and under Canon, supra, on the ground that their
acts were discretionary ones, employing advanced medical knowledge based on long experience,
considerable training, and detailed analysis before reviewing the options with plaintiff. The court also
determined that the uncontradicted evidence showed that the doctors had met the standard of care for
obtaining plaintiff’s informed consent and that she knew the details of her medical condition at the time
she consented to surgery.
II
Plaintiff first argues that the circuit court erred as a matter of law when it granted Drs. FiddianGreen, Elta, and Falk summary disposition because the doctors’ actions were ministerial ones that do
not qualify for governmental immunity from tort liability. We disagree.
Plaintiff’s argument is premised on the belief that any discretionary acts occur before the doctors
speak with the patient and actually obtain consent. Plaintiff distinguishes the diagnosis and treatment
selection process from obtaining the patient’s informed consent because obtaining consent is a
ministerial act taken in response to a clear legal duty. Plaintiff reasons that the doctors simply explain
their previously made decisions to a patient and ask the patient’s permission to execute the previously
developed plan. Plaintiff argues that obtaining informed consent does not involve exercising professional
judgment or involve making any discretionary decisions, but merely requires the doctors to perform their
duty. Plaintiff concludes that the circuit court failed to recognize that this case was more similar to the
facts and outcome in Green, supra, than to Canon, supra, which caused the court to apply the wrong
law.
A
We review summary disposition motions under subrule (C)(7) de novo on appeal to verify that
the prevailing party was entitled to judgment as a matter of law. Turner v Mercy Hosps & Health
Services of Detroit, 210 Mich App 345, 348; 533 NW2d 365 (1995). The circuit court must accept
the plaintiff’s complaint as true and construe all inferences in the plaintiff’s favor. Huron Tool &
Engineering Co v Precision Consulting Services, Inc, 209 Mich App 365, 377; 532 NW2d 541
(1995). If documentary evidence is submitted, then the court must consider that evidence. Higgins v
Lauritzen, 209 Mich App 266, 268-269; 530 NW2d 171 (1995). The court may grant the motion if
no material facts are in dispute and if the prevailing party is entitled to judgment as a matter of law.
Shawl v Dhital, 209 Mich App 321, 324; 529 NW2d 661 (1995); Huron Tool, supra, 375.
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Furthermore, whether the doctors’ actions were discretionary or ministerial presents a question
of law, Green, supra, 9-10, which is reviewed de novo on appeal, Cardinal Mooney High School v
Michigan High School Athletic Ass'n, 437 Mich 75, 80; 467 NW2d 21 (1991).
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B
In Ross v Consumers Power Co, 420 Mich 567, 633-634; 363 NW2d 641 (1984), our
Supreme Court held that lower level officials were entitled to governmental immunity if they acted during
the course of their employment, within the scope of their authority, with good faith, and performed
discretionary rather than ministerial acts. Our Supreme Court noted that, historically, common law
granted immunity only to the extent necessary to guarantee “unfettered decision-making,” and
distinguished between discretionary acts and ministerial acts as follows:
“Discretionary” acts have been defined as those which require personal
deliberation, decision, and judgment. . . . For clarity, we would add the word
“decisional” so the operative term would be “discretionary-decisional” acts.
“Ministerial” acts have been defined as those which constitute merely an
obedience to orders or the performance of a duty in which the individual has little or no
choice. . . . In a nutshell, the distinction between “discretionary” and “ministerial” acts
is that the former involves significant decision-making, while the latter involves the
execution of a decision and might entail some minor decision-making. Here too, for
clarity, we would add the word “operational” so the operative term would be
“ministerial-operational” acts. [Id., 634-635.]
Our Supreme Court explained that individuals are often given some measure of discretionary
authority to perform their duties, making it necessary to review the specific acts that the plaintiff
complained were committed by the defendant. Ross, supra, 635. According to our Supreme Court,
the goal is to provide the governmental agent or employee with the freedom necessary to achieve the
duty, while recognizing that the duty must have been performed in a conscientious manner. Id.
Applying Ross to a medical malpractice claim, our Supreme Court in Green, supra, 10-13,
examined each of the plaintiff’s allegations of negligence against the defendant nurses to determine
whether the defendant nurses’ actions w discretionary or ministerial. For example, the plaintiff
ere
complained that the nurses failed to maintain a clear airway by regularly suctioning the decedent’s
endotracheal tube. Id., 10. Our Supreme Court determined that, once the decision had been made to
intubate the decedent, then maintaining a clear airway by regularly suctioning the endotracheal tube was
a ministerial act that required only minor decision making. Id. Consequently, our Supreme Court
determined that the nurses engaged in ministerial acts for which they could be held liable if they had
negligently performed those acts. Id., 13.
In contrast to Green, the plaintiff in Canon, supra, 339, claimed that the defendant nurses had
failed to professionally evaluate the patient’s continued participation in an outpatient mental health
program. Our Supreme Court determined that the defendant nurses’ decision to treat the patient on an
outpatient basis involved considerable discretionary, decision-making skill, which qualified the defendant
nurses for governmental immunity from tort liability for negligence. Id., 340.
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C
In addition to the nature of the doctors’ actions, the doctrine of informed consent is also at issue
in this appeal. Informed consent is a duty imposed on a physician by law to warn the patient of a
medical procedure’s consequences. Roberts v Young, 369 Mich 133, 140; 119 NW2d 627 (1963).
The duty arises because a competent adult patient has the right to refuse any and all forms of medical
treatment. Werth v Taylor, 190 Mich App 141, 145; 475 NW2d 426 (1991). Expert testimony is
required to determine whether a physician has satisfied the duty in conformity with the customary
practices of medical professional in the locality. Roberts, supra, 140; Marchlewicz v Stanton, 50
Mich App 344, 347; 213 NW2d 317 (1973).
D
Plaintiff’s complaint alleges that the doctors told her that she had terminal ileitis, that she
believed that the condition was life threatening and required immediate surgical intervention, that the
doctors coerced her into submitting to the surgery, and that the doctors failed to obtain her informed
consent to the surgery.
The circuit court determined that the documentary evidence revealed that the doctors evaluated
plaintiff’s medical condition, analyzed potential diagnoses, identified possible treatment options,
consulted with others concerning possible diagnoses and treatment options, evaluated the
appropriateness of these options for plaintiff in light of her personal and family medical history, and
weighed the various risks and benefits associated with each treatment option. The court contrasted
these facts with the facts in Green and found this case factually more similar to the facts in Canon.
The documentary evidence in the present case included plaintiff’s medical records, which
showed that plaintiff was referred to Drs. Elta and Falk for a second opinion to determine whether
plaintiff had Crohn’s disease or ulcerative colitis. Drs. Elta and Falk ordered additional tests, reviewed
the test results, and consulted with other specialists concerning the test results and treatment options.
Then Drs. Elta and Falk offered plaintiff two options: first, continued medical monitoring and testing,
which carried with it the risk that plaintiff could develop cancer between tests; or second, surgical
intervention. Drs. Elta and Falk further explained to plaintiff that there were three surgical options: a
standard ileostomy, a continent ileostomy, or a J-pouch procedure, and the doctors explained each
option.
According to Drs. Elta’s and Falk’s clinical notes, plaintiff returned a week later and told them
that she decided to have her colon removed, given her family history of colon cancer, but that she
wanted a further consultation with Dr. Fiddian-Green. Two days later plaintiff consulted with Dr.
Fiddian-Green, who explained the available surgical options and that the J-pouch technique might not be
feasible. Four days after her consultation with Dr. Fiddian-Green and one day before surgery, plaintiff
signed a consent form that stated that she had discussed the procedure and its associated risks with Dr.
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Fiddian-Green. Plaintiff underwent surgery on January 24, 1984, to have her colon removed, and she
required a permanent ileostomy when it was determined that the J-pouch technique could not be used.
Plaintiff’s expert witness, Dr. S. H. Saie, explained in his deposition the degree of difficulty
associated with diagnosing plaintiff’s condition and outlined the complex process involved to identify,
evaluate, and select appropriate treatment options for a patient like plaintiff whose inflammatory disease
may follow a pattern of exacerbation then quiescence or may be a precursor of cancer. Dr. Saie also
testified that, in his opinion, Drs. Fiddian-Green, Elta, and Falk satisfied the 1984 standard of care for
obtaining informed consent.
We find no error in the circuit court’s decision. The court correctly focused on the process of
obtaining plaintiff’s informed consent and properly recognized that the complex process makes this case
more similar to the facts in Canon, supra, 339-340. The court also correctly determined that Dr.
Saie’s uncontradicted evidence showed that the 1984 standard of care for obtaining informed consent
had been met. Roberts, supra, 140; Marchlewicz, supra, 347. Plaintiff’s argument focuses too
narrowly on the doctors’ actual conversations with her and places too little emphasis on the events
preceding those conversations. To determine the discretionary or ministerial nature of the doctors’
actions in obtaining plaintiff’s informed consent, we believe that the more encompassing review utilized
by the circuit court is most appropriate. Green, supra, 10-13; Canon, supra, 339-340; Ross, supra,
634-635.
III
Finally, plaintiff contends that the doctors acted with deliberate indifference toward her, and she
reasons that the circuit court erred when it failed to recognize that the doctors are not entitled to
governmental immunity from tort liability as a result of their deliberate indifference.
We do not address this issue because whether the doctors acted with deliberate indifference
toward plaintiff is an issue that is beyond the scope of our Supreme Court’s remand order. The general
rule is that further appeal is limited to the issues addressed in the remand order. Wemmer v National
Broach & Machine Co, 199 Mich App 376, 384; 503 NW2d 77 (1993). Our Supreme Court
remanded this case to the circuit court for reconsideration on the sole issue whether the doctors’ actions
were discretionary or ministerial, and this Court does not consider issues outside the scope of remand.
In re Loose (On Remand), 212 Mich App 648, 654; 538 NW2d 92 (1995); Wemmer, supra, 384.
Affirmed.
/s/ Richard Allen Griffin
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