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No. 137092
| Elizabeth Dawe, |
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Mark Granzotto |
Plaintiff-Appellant/Cross-Appellee, |
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Justin Haas |
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| Blue Cross Blue Shield of Michigan, |
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Intervening Plaintiff, |
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(Appeal from Ct of Appeals) |
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(Oakland - Simon, C.) |
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| Dr. Reuvan Bar-Levav & Associates, P.C., Estate of |
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Noreen L. Slank |
| Dr. Reuvan Bar-Levav, M.D., and Dr. Leora Bar-Levav, |
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| M.D., |
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Defendants-Appellees/Cross-Appellants. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellant-Cross-Appellee's Brief on Appeal>>
Defendants-Appellees-Cross-Appellants' Brief on Appeal>>
Background
Joseph Brooks was treated by Dr. Reuvan Bar-Levav, a psychiatrist with a practice in Southfield. Elizabeth Dawe attended the same group therapy sessions as Brooks for several months, until Dr. Bar-Levav refused to continue treating Brooks because he had stopped taking his medications. Several months later, Dr. Bar-Levav was leading a group therapy session that included Dawe. Brooks came into the office and fatally shot the psychiatrist. He fired several other shots, wounding Dawe and another patient and killing a third patient. Brooks then killed himself.
Dawe sued Bar-Levav’s estate, as well as another physician who practiced with him, and his professional corporation. In her medical malpractice complaint, Dawe alleged that the defendants breached a duty under MCL 330.1946, which places obligations on a mental health professional treating a patient who makes a “threat of physical violence against a reasonably identifiable third person” and “has the apparent intent and ability to carry out that threat in the foreseeable future.” MCL 330.1946 also states that a mental-health professional has no duty to “warn” or “protect” a “third person,” except as provided in the statute. There is no dispute that Brooks never threatened Dawe directly. Dawe also asserted a common-law medical malpractice claim, alleging that the defendants breached the standard of care by placing Brooks into group therapy, and failing to take reasonable steps for her protection.
The defendants moved for summary disposition, arguing that she could not establish a claim under MCL 330.1946 because there was no evidence that Brooks threatened Dawe directly. The defendants also asserted that Dawe’s common-law medical malpractice claim was preempted by the statute. In response, Dawe argued that the defendants owed a special duty to her because she was not just any “third person,” but another patient. She contended that the physician-patient relationship created a duty that required the defendants to take reasonable precautions for her protection, and that the defendants breached the standard of care by placing Brooks in group therapy.
The trial court denied the defendants’ motion and the case proceeded to trial. After the defendants unsuccessfully moved for a directed verdict, the jury returned a $646,842.87 verdict for Dawe. The trial court also denied the defendants’ post-judgment motions. In a split published opinion, the Court of Appeals reversed the trial court, vacated the judgment, and remanded the case for entry of an order granting the defendants’ motion for directed verdict. The appellate court concluded that MCL 330.1946 preempted all common law claims for failure to warn or protect, and that Dawe failed to state a claim under the statute. The dissenting judge noted that, in 1995, the Legislature amended MCL 330.1946, changing the word “patient” to “recipient” at one point in the first sentence. A “recipient” is defined in MCL 330.1100c(12) as a person who receives mental health services through a state agency or community mental health facility. In this case, the dissenting judge concluded, there was no evidence that Brooks was a “recipient” during the period in which 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 common law claim.” The dissenting judge also concluded that the statute does not affect a mental health professional’s duty to refrain from actively placing another person in danger. He would have held that the trial court did not err when it denied the defendants’ various motions. Dawe appeals.
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