ELIZABETH SCHWARTZ V MARGO GILBERT
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STATE OF MICHIGAN
COURT OF APPEALS
ELIZABETH SCHWARTZ,
UNPUBLISHED
February 19, 2009
Plaintiff-Appellant,
v
MARGO GILBERT, PAMELA WARNER,
BELA CHOPP, and OAKLAND UNIVERSITY,
No. 279992
Oakland Circuit Court
LC No. 2005-070175-CZ
Defendants-Appellees.
Before: Wilder, P.J., and Cavanagh and Murray, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting defendants’ motions for
summary disposition. We affirm.
Plaintiff, a student at Oakland University, underwent counseling with defendant Margo
Gilbert, a therapist at the school. Plaintiff also worked as a phlebotomist at William Beaumont
Hospital. While working at Beaumont Hospital, plaintiff discovered that Gilbert had been a
patient there and accessed Gilbert’s personal medical records at the hospital. Plaintiff later told
Gilbert that she had done this, and Gilbert notified Beaumont Hospital. Plaintiff was
subsequently fired from her hospital position. Plaintiff was also removed from the university
because of a psychological emergency and elected not to return. Plaintiff subsequently filed an
action in circuit court against Gilbert and her supervisors, defendants Pamela Warner and Bela
Chopp, for breach of confidentiality. She filed a separate action in the Court of Claims against
Oakland University, alleging claims for respondeat superior liability, violation of due process
and equal protection, and breach of contract. The two actions were consolidated in the circuit
court.
The circuit court granted the individual defendants’ motions for summary disposition,
agreeing with them that plaintiff ’s action was substantively one for medical malpractice, and
was improperly filed for failure to comply with the applicable procedural requirements for filing
a malpractice action. The trial court also granted defendant Oakland University’s motion for
summary disposition, ruling that plaintiff’s failure to file a proper malpractice action precluded
respondeat superior liability, that there was no factual or legal support for plaintiff’s due process
or equal protection claim, and that plaintiff failed to establish the existence of a contract in order
to prevail on a breach of contract theory.
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Plaintiff first argues that the trial court erred in dismissing her claim against the
individual defendants for breach of confidence. This Court reviews a trial court’s summary
disposition decision de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d
201 (1998). Although the trial court stated that it was granting summary disposition pursuant to
both MCR 2.116(C)(8) and (10), because the court considered evidence beyond the pleadings,
subrule (C)(10) is the appropriate rule to apply. Id. A motion under MCR 2.116(C)(10) tests the
factual support for a claim. The court must consider the pleadings, affidavits, depositions,
admissions, and other documentary evidence submitted by the parties. MCR 2.116(G)(5).
Summary disposition should be granted if, except as to the amount of damages, there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995).
Plaintiff’s breach of confidentiality claim alleged that the individual defendants violated
MCL 333.18237, which provides that a psychologist “cannot be compelled to disclose
confidential information acquired from an individual consulting the psychologist in his or her
professional capacity if the information is necessary to enable the psychologist to render
services.” At issue here is whether a claim for breach of confidence is properly characterized as
one for medical malpractice, as defendants argue, or whether such a claim should be viewed as
an independent cause of action, as urged by plaintiff.
Although the statute establishes a psychologist-patient privilege, it does not expressly
provide a cause of action if the privilege is violated. As the parties observe, other states have
differed on how a claim for breach of confidence should be characterized. See Watts v
Cumberland Co Hosp Sys, Inc, 75 NC App 1, 4, 7-8; 330 SE2d 242 (1985), rev’d on other
grounds 317 NC 321 (1986); Pierce v Caday, 244 Va 285, 291-292; 422 SE2d 371 (1992); Wyatt
v St Paul Fire & Marine Ins Co, 315 Ark 547, 554-555; 868 SW2d 505 (1994); Hammer v
Polsky, 36 Misc 2d 482, 483-484; 233 NYS2d 110 (1962). In this case, we find it unnecessary to
resort to decisions from other states. In this state, a claim against a health care provider is
properly characterized as one for medical malpractice if the claim (1) arises from conduct that
occurred during the course of a professional relationship, and (2) involves questions of medical
expertise or judgment outside the realm of common knowledge and experience. Kuznar v
Raksha Corp, 481 Mich 169, 176-177; 750 NW2d 121 (2008); Bryant v Oakpointe Villa Nursing
Centre, Inc, 471 Mich 411, 422; 684 NW2d 864 (2004). If both inquiries are answered
affirmatively, the action is one for malpractice and is subject to the procedural and substantive
requirements that govern medical malpractice actions. Id.
In this case, plaintiff’s claim is based on allegedly confidential communications made
during a professional relationship with Gilbert. To establish a violation of the duty imposed by
MCL 333.18237, plaintiff must demonstrate that the information she revealed to Gilbert, and
which Gilbert disclosed, was both confidential and necessary to enable Gilbert to render services.
Indeed, to establish factual support for her claim below, plaintiff relied on the deposition
testimony of Dr. Jeffrey Kezlarian, a psychiatrist, to show that her statements to Gilbert were for
purposes of therapy and that Gilbert’s contact with Beaumont Hospital involved the disclosure of
confidential information and violated the therapeutic relationship by breaking plaintiff ’s
confidences. Thus, plaintiff’s claim is dependent upon questions of medical expertise or
judgment outside the realm of common knowledge and experience of laypersons. Accordingly,
the trial court did not err in determining that plaintiff’s claim is one for medical malpractice and,
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therefore, subject to procedural and substantive requirements that govern medical malpractice
actions.
Further, because defendants asserted the statute of limitations as an affirmative defense
and the limitations period for a malpractice action had expired, defendants were not precluded
from asserting the procedural requirements for a malpractice action as a bar to plaintiff’s action.
As this Court recently stated in Miller v Malik, 280 Mich App 687, 693; ___ NW2d ___ (2008):
Beaumont asserted in its affirmative defenses that plaintiff’s claim was
barred by the applicable statute of limitations, without referring to MCL
600.2912b or otherwise specifically challenging the notice of intent. However, a
defendant is not obligated to challenge the sufficiency of a plaintiff’s notice of
intent pursuant to MCL 600.2912b until the plaintiff has raised the issue of the
tolling provision of MCL 600.5856, which necessarily occurs after the defendant
has raised a statute of limitations defense in its first responsive pleading. Roberts
v Mecosta Co Gen Hosp, 466 Mich 57, 70 n 7; 642 NW2d 663 (2002) (Roberts I).
Therefore, Beaumont did not waive its right to challenge the notice of intent.
Next, plaintiff argues that the trial court erred in dismissing her claim of a due process
violation against Oakland University.1 Plaintiff argues that her right to due process was violated
when she was removed from the university without a hearing, contrary to the university’s own
policies and procedures set forth in its student handbook.
Public students are afforded due process protection in school disciplinary proceedings.
Seal v Morgan, 229 F3d 567, 574 (CA 6, 2000). Due process typically requires notice and a
hearing before a student is suspended. Goss v Lopez, 419 US 565; 95 S Ct 729; 42 L Ed 2d 725
(1975); Birdsey v Grand Blanc Community Schools, 130 Mich App 718, 725-727; 344 NW2d
342 (1983). But due process is a flexible concept, the essence of which is to ensure fundamental
fairness. Reed v Reed, 265 Mich App 131, 159; 693 NW2d 825 (2005). Thus, a student may be
removed in an emergency situation without a hearing, so long as a hearing promptly follows.
Goss, supra at 571 n 6.
Here, Oakland University’s student handbook states that students can be removed for
emotional health-related emergencies if there is imminent danger to the student or the campus,
without conducting a hearing beforehand. The record discloses that plaintiff was removed from
the university not for disciplinary reasons, but rather because of a psychological emergency. The
undisputed evidence established that plaintiff had a history of self-mutilation and had cut herself
with scissors in the past. She was removed following an incident in which she deliberately broke
a glass frame and threatened to cut herself. Under the circumstances, a hearing was not required
before plaintiff’s removal. See Hill v Bd of Trustees of Michigan State Univ, 182 F Supp 2d 621,
629-630 (WD Mich, 2001); Picozzi v Sandalow, 623 F Supp 1571, 1578-1579 (ED Mich, 1986),
aff’d 827 F2d 770 (CA 6, 1987).
1
Although plaintiff also alleged a violation of her right to equal protection, her argument on
appeal is limited to a due process violation. Thus, plaintiff has abandoned any equal protection
claim.
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The university’s emergency procedures provide that in a situation of an attempted suicide
or threat, “[i]n most cases, the individual will not be allowed to return to the university or
university housing until a psychological evaluation is completed and approval is granted by the
dean of students.” Plaintiff admitted that she was notified that she might be able to return to
school if she could show that she was no longer a threat to herself and others, and that she had
obtained treatment. Instead, plaintiff decided to attend school elsewhere and did not pursue
reinstatement at Oakland University. Because the university’s procedures afforded plaintiff an
opportunity to request reinstatement to the university, and it was plaintiff who decided not to
pursue reinstatement, plaintiff cannot establish a due process violation. Accordingly, the trial
court properly dismissed this claim.
Finally, the trial court also properly dismissed plaintiff’s breach of contract claim against
the university. That claim is based on the university’s failure to follow the procedural
requirements in its student handbook that are applicable when a student is removed for
misconduct or other disciplinary reasons. Here, however, plaintiff was not removed for a
disciplinary reason set forth in the handbook, but rather was removed pursuant to the university’s
emergency psychological removal procedures. Because the student handbook’s disciplinary
procedures did not apply to plaintiff ’s situation, plaintiff cannot establish a contract, or breach
thereof, based on the handbook. Accordingly, the trial court properly dismissed this claim.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Mark J. Cavanagh
/s/ Christopher M. Murray
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