
    JOPLIN v UNIVERSITY OF MICHIGAN BOARD OF REGENTS
    Docket No. 97002.
    Submitted August 2, 1988, at Lansing.
    Decided November 21, 1988.
    Leave to appeal applied for.
    Eunice Joplin brought a medical malpractice action in Washtenaw Circuit Court against the Board of Regents of the University of Michigan and Charles Drescher and John Hebert, III, doctors at the University of Michigan Hospital specializing in obstetrics and gynecology, alleging that defendant doctors had negligently performed an abortion upon her. Defendants moved for summary disposition on the ground of governmental immunity. The court, Ross W. Campbell, Jr., J., granted the motion. Plaintiff appealed from the order of summary disposition as it applied to defendant doctors.
    The Court of Appeals held:
    
    Lower level governmental employees, such as defendant doctors, are immune from tort liability when they are acting in good faith in the course of their employment and within the scope of their authority and performing a discretionary rather than a ministerial function. The performing of surgery is, by its nature, discretionary in nature. Accordingly, since there was no allegation that defendant doctors were not acting in good faith, in the course of their employment and within the scope of their authority, summary disposition on the basis of governmental immunity was properly granted in favor of defendant doctors.
    Affirmed.
    Cynar, J., dissented. He would hold that, while medical decisions are discretionary in nature, the execution of a medical decision is a ministerial act. He would reverse.
    Governmental Immunity — Governmental Employees — Surgeons — Discretionary Acts.
    Carrying out surgery is a discretionary rather than a ministerial act, since during the surgery the surgeon must make numerous decisions based upon the condition of the patient; accordingly, a surgeon employed by a government entity is immune from liability in an action which alleges malpractice arising out of a surgery performed by the surgeon where the surgeon is acting in the course of his employment and acting, or reasonably believes he is acting, within the scope of his authority and acting in good faith.
    
      References
    Am Jur 2d, Municipal, County, School, and State Tort Liability §§ 118 et seq.
    
    Immunity from liability for damages in tort of state or governmentatl unit or agency in operating hospital. 25 ALR2d 203.
    
      
      Nine & Maister (by Ronald B. Maister), for plaintiff.
    
      Feikens, Foster, Vander Male & DeNardis, P.C. (by Dale L. Herbert), for defendants.
    Before: Danhof, C.J., and Cynar and G. R. Deneweth, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   Danhof, C.J.

Plaintiff filed a negligence malpractice action against defendants in Washtenaw Circuit Court. The lower court granted defendants’ motion for summary disposition on the ground of governmental immunity. Plaintiff appeals as of right only with regard to defendants Drescher and Hebert (hereinafter defendants). We affirm.

In her complaint, plaintiff alleged that on or about February 10, 1984, she entered the University of Michigan Hospital to have an abortion, that Drescher and Hebert worked at the hospital as doctors specializing in obstetrics and gynecology, that they terminated plaintiff’s pregnancy through a dilatation and evacuation procedure, that they perforated her uterus and allowed fetal tissue to be evacuated from her uterus and left behind in her abdominal cavity, and that plaintiff underwent further surgery to correct these problems.

Lower level governmental employees, such as defendants, are immune from tort liability when they are:

1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;
2) acting in good faith; and
3) performing discretionary, as opposed to ministerial acts, [Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 633-634; 363 NW2d 641 (1984).]

The first two elements of the test are undisputed. Plaintiff claims that, while defendants’ decision to operate was discretionary, their execution of that decision was ministerial. Therefore, plaintiff contends, individual immunity does not bar her claims against defendants for improperly performing the operation.

Our Supreme Court explained the distinction between discretionary and ministerial acts as follows:

"Discretionary” acts have been defined as those which require personal deliberation, decision and judgment. Prosser, [Torts (4th ed)] § 132, p 988. This definition encompasses more than quasi-judicial or policy-making authority, which typically is granted only to members of administrative tribunals, prosecutors, and higher level executives. However, it does not encompass every trivial decision, such as "the driving of a nail,” which may be involved in performing an activity. 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. Id. We believe that this definition is not sufficiently broad. An individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a nontortious manner. 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. [Ross, supra, pp 634-635.]

Plaintiff relies on cases which found that medical decisions are discretionary, but the execution of those decisions is ministerial. See Sayles v Baughman, 163 Mich App 58, 62; 413 NW2d 730 (1987); Brown v Northville Regional Psychiatric Hospital, 153 Mich App 300, 307; 395 NW2d 18 (1986); Tobias v Phelps, 144 Mich App 272, 281; 375 NW2d 365 (1985), lv den 424 Mich 859 (1985).

We find that the reasoning of Sayles, Brown and Tobias should not be applied to this case. Those cases were based on the interpretations of our Supreme Court’s statement that

[a]n individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a non-tortious manner. [Ross, supra, pp 634-635.]

The Ross Court further stated:

Many individuals are given some measure of discretionary authority in order to perform their duties effectively. Therefore, to determine the existence and scope of the individual’s immunity from tort liability in a particular situation, the specific acts complained of, rather than the general nature of the activity, must be examined. The ultimate goal is to afford the officer, employee, or agent enough freedom to decide the best method of carrying out his or her duties, while ensuring that the goal is realized in a conscientious manner. [420 Mich 635.]

Our Supreme Court recently elaborated upon the distinction between acts which are discretionary-decisional and those which are ministerial-operational in Canon v Thumudo, 430 Mich 326; 422 NW2d 688 (1988). The Canon Court rejected the theory advanced in Davis v Lhim (On Remand), 147 Mich App 8, 12-15; 382 NW2d 195 (1985), rev’d 430 Mich 326 (1988), that any act of a professional which deviates from professional standards is, ipso facto, ministerial in nature. 430 Mich 334. Our Supreme Court explained:

To adopt such a definition for "ministerial” would come close to eliminating all immunity for professionals by confusing the issues of immunity and negligence. The distinction is significant. Jf every act which deviates from a professional norm were to be categorized as "ministerial,” immunity would seldom shield professional discretion. Nothing in Ross, supra, hints at such a drastic limitation on the scope of individual immunity. To the contrary, in Ross, we cited with approval Justice Edwards’ observation in Williams v Detroit, 364 Mich 231, 261-262; 111 NW2d 1 (1961), that "’[discretion implies the right to be wrong.’” Ross, supra, p 628. The very concept of immunity presupposes that the activities complained of may have been negligently performed — i.e., in violation of the requisite standard of care. In protecting significant decision making on the part of public employees from tort liability, Ross intended "to ensure that a decision-maker is free to devise the best overall solution to a particular problem, undeterred by the fear that those few people who are injured by the decision will bring suit.” Ross, supra, p 631. Courts should take care not to confuse their separate inquiries into immunity and negligence. [Canon, supra, p 335.]

In her complaint, plaintiff essentially claimed that defendants negligently performed the dilatation and evacuation procedure. Plaintiff contends that, while defendants’ decision to operate was discretionary, the execution of that decision through surgery was ministerial. If we adopted plaintiff’s definition of "ministerial” then we would come close to eliminating all immunity for similarly-situated professionals by confusing our inquiry into immunity with the separate issue of defendants’ alleged negligence. Canon, supra, p 335.

A surgeon does not just decide to operate. He or she must also make numerous decisions based on the patient’s condition, which may be unexpected or change during the course of surgery. The procedure used to terminate plaintiff’s pregnancy required a continuing series of decisions by the defendant doctors who performed it. Therefore, that procedure was discretionary.

We conclude that defendants’ performance of a dilatation and evacuation procedure upon plaintiff was discretionary. We reject plaintiff’s claim that defendants’ execution of their discretionary decision to operate was ministerial. The lower court properly granted summary disposition in favor of defendants on the basis that plaintiff’s claims against them are barred by individual immunity.

Affirmed.

G. R. Deneweth, J., concurred.

Cynar, J.

(dissenting).

I respectfully dissent and would reverse the trial court’s order of summary disposition in favor of defendants Drescher and Hebert.

In her complaint, plaintiff alleged that, on February 10, 1984, she entered the University of Michigan Hospital as an out-patient for the purpose of terminating a pregnancy. Defendants Drescher and Hebert performed a dilatation and evacuation procedure and thereby terminated plaintiffs pregnancy. On February 12, 1984, plaintiff returned to the hospital complaining of abdominal pain. An examination revealed that plaintiffs uterus had been perforated. Plaintiff was admitted to the hospital as an in-patient and surgery was performed to repair the perforation. Subsequently, plaintiff continued to have complaints of abdominal pain and again returned to the hospital. On February 22, 1984, an ultrasound demonstrated that a portion of the fetal skull had migrated through the perforated uterus into plaintiffs abdominal cavity where it still remained. Consequently, further surgery was performed and the remaining fetal material was removed.

This Court has previously held that, while medical decisions are discretionary in nature, the execution of a medical decision is a ministerial act. Sayles, v Baughman, 163 Mich App 58, 62; 413 NW2d 730 (1987); Brown v Northville Regional Psychiatric Hospital, 153 Mich App 300, 307; 395 NW2d 18 (1986); Tobias v Phelps, 144 Mich App 272, 281; 375 NW2d 365 (1985).

In this case, defendants decided to perform a dilatation and evacuation procedure in order to terminate plaintiff’s pregnancy. That medical decision was a discretionary act. However, defendants’ execution of that medical decision was a ministerial act for which governmental immunity is not available. Sayles, supra; Brown, supra; Tobias, supra. Because the act complained of in this case is the execution of a surgical procedure, and not a discretionary act, defendants Drescher and Hebert should not be entitled to immunity.

I would reverse and remand for further proceedings.  