Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Bind over; CCW, first-degree premeditated murder, discharge of a firearm at a dwelling causing death (deadly discharge), & felony-firearm; Intent; The doctrine of transferred intent; Aiding & abetting
The court held that the district court abused its discretion in declining to bind over defendant-Flanders. It “further erred by failing to consider each charged offense and dismissing the complaint in its entirety based on a determination that there was no probable cause that Flanders committed first-degree premeditated murder.” S (victim-C’s father) “testified that Flanders told him on more than one occasion that he was carrying a .9-millimeter pistol when” the incident occurred and that he fired it at the house. While the shooters’ identity could not be ascertained from the surveillance footage, it was “clear that more than one individual was armed and firing. Given Flanders’ statements to [S], it can be reasonably inferred that Flanders was one of those armed individuals. This was sufficient to bind over Flanders on the CCW charge.” As to the charges of first-degree murder, deadly discharge, and felony-firearm, the court held that the prosecution presented sufficient evidence to bind over Flanders on them “under two theories: either that he was the person who shot [C] or that he was an accomplice to the person who shot [C]. Binding over Flanders as a principal requires relying on the doctrine of transferred intent.” The court concluded the “prosecution presented sufficient evidence from which a person of ordinary prudence and caution would have probable cause to believe that Flanders acted with premeditation and deliberation. When Flanders learned that a friend had been killed earlier in the evening, he joined other friends to seek retribution or to ‘get some answers.’” Meeting up with like-minded friends, “Flanders exited his vehicle and fired several shots toward the house, as he described to [S]. It can be reasonably inferred from Flanders’ actions that he travelled to the . . . house with the intent of seeking out his friend’s murderer and doling out retribution.” The court also found “probable cause to believe that Flanders either shot [C] or aided and abetted the fatal shooting. Investigating officers found [C’s] blood outside in the snow, demonstrating that [C] was shot outside the vehicle. Flanders described to [S] that he had exited the driver side of his vehicle and immediately started shooting. As Flanders pulled up to the curb with the passenger side of his vehicle facing the house, it can be inferred that [C] stood between” him and his target. The evidence supported that “Flanders intentionally shot at the house where he believed his friend’s murderer was present. [His] intent to kill the alleged murderer was thereby transferred to the individual who was actually” struck—C. Reversed and remanded.
Sentencing; MCL 769.34(10); Proportionality; Scope of remand
The court concluded that there was no record support to determine the trial court relied on inaccurate information in resentencing defendant. He also did not meet “his high burden that would rebut the presumption of proportionality” given his within-guidelines sentences and permit the court to order a remand to resentence him. He was convicted FIP, felony-firearm (second offense), felonious assault, and aggravated domestic violence. He was sentenced as a third-offense habitual offender to 2 to 10 years for the FIP and 2 to 8 years for felonious assault, to run concurrent to each other but consecutive to five years for the felony-firearm. The court previously affirmed his convictions but twice remanded as to sentencing issues. Defendant argued he was “entitled to be resentenced, on the basis of accurate information, before a new judge.” First, he contended “the trial court’s sentencing decision was on the basis of incorrectly scored guidelines.” The court noted that “during the original sentencing hearing, the trial court and the parties agreed on incorrectly scored guidelines. When we remanded the first time and retained jurisdiction, the parties agreed to a change in the guidelines range. The trial court, concomitantly, agreed to resentence defendant. At that resentencing, the trial court specifically acknowledged the new and lower guidelines range. Despite that, the trial court determined defendant would still be ordered to serve the same sentence of 2 to 10 years’ imprisonment for his [FIP] conviction. The trial court only cited, though, the reasoning it believed it had given at the original sentencing hearing. Because the trial court had not actually provided such reasoning, we remanded to the trial court to explain itself or to grant another resentencing.” During the “second remand, the trial court again noted the new guidelines range of 5 to 34 months’ imprisonment. The trial court explained it had maintained the original sentence at the resentencing because the minimum of two years’ imprisonment fell within the newly calculated guidelines and for a plethora of other offense-specific reasons recounted on the record. The trial court’s decision to impose the same sentence does not negate the fact [it] corrected the scoring error and relied on the corrected guidelines range to impose the second sentence. Because the trial court specifically acknowledged the appropriate guidelines range two separate times on the record,” the court found that defendant did not provide any reason to believe it “relied on the incorrect guidelines range when resentencing defendant, and thus, the decision to explain its reliance on the guidelines range instead of again resentencing defendant was appropriate.”
Vicarious liability claim against a hospital on an ostensible-agency theory; Actual-agency theory; Grewe v Mt Clemens Gen Hosp; VanStelle v Macaskill; Sasseen v Community Hosp Found; Reeves v MidMichigan Health; Emergency room (ER)
In an order after leave to appeal had been granted, and consideration of the parties’ briefs and oral argument, the court reversed the Court of Appeals judgment (see e-Journal # 75287 in the 5/10/21 edition) and remanded the case to the Court of Appeals “for reconsideration under the proper legal standard.” It found that both “the trial court and the Court of Appeals misinterpreted and misapplied Grewe.” The court concluded the “rule from Grewe is that when a patient presents for treatment at a hospital [ER] and is treated during their hospital stay by a doctor with whom they have no prior relationship, a belief that the doctor is the hospital’s agent is reasonable unless the hospital does something to dispel that belief.” The Court of Appeals majority here cited VanStelle “for the requirement that ‘the putative principal must have done something that would create in the patient’s mind the reasonable belief’ of agency. But a core aspect of our holding in Grewe was that ‘[a]n agency is ostensible when the principal intentionally or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.’” The court found that to the extent “VanStelle requires a plaintiff to show some additional, affirmative act by the hospital in every [ER] case to prove ostensible agency, it is in direct tension with Grewe and therefore overruled.” The court agreed with the Court of Appeals majority “that agency cannot arise ‘merely because one goes to a hospital for medical care.’” However, it found that this “broad statement conceals the most important distinction between Sasseen and cases like it and this one: a preexisting relationship between doctor and patient. The panel majority concluded that because the plaintiff ‘did not recall’ the doctor who treated her at the hospital, she could not have formed a reasonable belief that the doctor was the hospital’s agent.” This holding was likewise “in tension with Grewe[.]” The court further noted “that patient testimony is not required to establish ostensible agency under Grewe.” In addition, it took “the opportunity to clarify that Grewe has never been overruled. To the extent Reeves created confusion about the application of Grewe to cases such as this, we limit Reeves to its facts. Grewe remains our rule.” Dissenting, Justice Viviano (joined by Chief Justice Clement and Justice Zahra) found that Grewe “was ambiguous and never directly addressed the key point at issue here. Over the decades since Grewe, the Court of Appeals has properly read that case to mean that, for ostensible agency to exist, defendant hospitals must engage in some act or neglect beyond simply operating an [ER]. By taking a broader reading of Grewe, the majority overturns this caselaw and disregards the foundations of the ostensible-agency doctrine, setting in motion a sweeping expansion of hospital liability without any accompanying practical benefit to injured plaintiffs.”
Medical malpractice; Physician-patient relationship; Oja v Kin; Hearsay; MRE 803(6); Cardiology Associates of Port Huron, PC (CAPH); Electrocardiogram (EKG); ST-elevation myocardial infarction (STEMI)
Holding that the trial court erred in granting defendants-CAPH and Dr. Skaf summary disposition on the ground there was no evidence Skaf had a physician-patient relationship with plaintiff-estate’s decedent, the court reversed and remanded. A preliminary issue on appeal was whether a note by the decedent’s ER doctor, defendant-Bayudan, was hearsay. The court found that “the statement in question, that Dr. Skaf agreed not to activate a code STEMI, was not being offered for the truth that decedent was not suffering from a STEMI, but for the fact it was made, and its impact on the listener, Dr. Bayudan, in directing decedent’s care. ‘Statements offered to show that they were made or to show their effect on the listener are not hearsay.’” Further, because the note can be admitted under MRE 803(6) at trial, it was properly considered in deciding whether to grant summary disposition. The primary issue on appeal was “whether a physician-patient relationship was formed between Dr. Skaf and decedent that would impose a legal duty to decedent upon Dr. Skaf.” The court noted that “performing a full consult is not required under Oja. Instead, what is critical is that Dr. Skaf was the on-call cardiologist when decedent presented to the [ER], and that he was contacted twice about decedent’s situation.” In addition, he “admitted he reviewed the EKG and informed Dr. Bayudan he would be down immediately after his procedure was over. Had Dr. Skaf believed a code STEMI was necessary, he had the opportunity to indicate that. Additionally, Dr. Skaf testified that he received enough information to at least determine that decedent did not require an emergency catheterization. The evidence, viewed in a light most favorable to plaintiff, is sufficient to establish Dr. Bayudan sought out on behalf of decedent Dr. Skaf’s expertise, as the on-call cardiologist, in treating decedent. This was not an informal telephone call between physicians. Rather, it was a targeted call from the treating physician to the on-call cardiologist seeking direction for decedent’s care.” Thus, the court concluded plaintiff “provided sufficient evidence that Dr. Skaf was on-call, was informed in part about the decedent’s condition, and was minimally involved in directing decedent’s treatment, and, therefore, consented to a physician-patient relationship.”
First-party action for no-fault benefits; MCL 500.3105(1); Causal relationship between an auto accident & plaintiff’s injuries; Sanction for discovery violations; MCR 2.313(B)(2)(c); Form of the sanction; Dean v Tucker
The court held that the trial court erred in granting defendant-insurer summary disposition because plaintiff’s evidence as to causation, although “minimal, was sufficient to survive summary disposition.” As to defendant’s cross-appeal, the court concluded the trial court abused its discretion in not sanctioning plaintiff for discovery violations. The trial court determined that plaintiff failed to offer “evidence of a causal relationship between the accident and his injuries. However, even with the doctors’ consistent refusals to testify absent expert witness fees, plaintiff submitted sufficient evidence of causation” to defeat defendant’s summary disposition motion. Plaintiff’s medical records from a healthcare provider explicitly stated that his “injuries were causally related to the accident[.]” In addition, although the doctors (one testified he provided plaintiff injection therapy for back and neck pain, and the other operated on plaintiff’s shoulder) “frequently refused to answer questions, both doctors concluded, on the record, plaintiff’s injuries were caused by the accident. While the minimal reasoning they were willing to provide absent a fee was lackluster (that the injuries were caused by the accident because they were not there before the accident), whether this reasoning is sufficient to establish causation is for the finder of fact.” As to the issue of discovery sanctions due to the doctors’ uncooperativeness, although “MCR 2.313(B)(2) considers parties, and the doctors were not parties, this does not preclude the rule’s applicability.” The court found that “the excessive number of unfounded objections by plaintiff’s counsel, and the doctors’ subsequent unwillingness to answer questions, indicates plaintiff’s counsel acted to hinder discovery.” Defendant requested the sanction of striking the doctors as witnesses. As “a less drastic sanction than outright dismissal, this would be an appropriate option for the trial court to impose under the circumstances of this case. However, the form of discovery sanction to impose is a matter of discretion for the trial court.” On remand, it should consider the Dean factors “and fashion an appropriate discovery sanction for plaintiff.” Reversed and remanded.
Jurisdiction; MCL 712A.2(b)(1) & (2); In re Williams; MCL 712A.13a(9)
Holding that the record evidence clearly supported the trial court’s jurisdiction over the three of respondent-mother’s children at issue, the court affirmed. “The DHHS more than adequately supported grounds to take jurisdiction over the children. The DHHS established by a preponderance of the evidence that respondent had ‘neglect[ed] or refuse[d] to provide proper or necessary support . . . or other care necessary’ and had ‘subject[ed]’ the children ‘to a substantial risk of harm to [their] mental well-being.’” The DHHS also established that the “home was ‘unfit’ based at least on neglect.” While respondent claimed that “her physical health limited her ability to supervise her children, her medical diagnoses” could not excuse physical abuse. She contended that “the DHHS should have provided in-home services while leaving the children in her care instead of seeking court jurisdiction over CC, AZ, and AH. The failure to do so violated her constitutional right to care and custody of her children, respondent argues. ‘If the trial court orders placement of the children in foster care, it must make explicit findings that . . . reasonable efforts to prevent the removal of the child have been made or that reasonable efforts to prevent removal are not required.’” But as the court acknowledged in Williams, “while ‘it is well recognized as public policy that separation of children from parents should be avoided if reasonably feasible,’ ‘not removing a child from an unfit parent can also be hazardous to the child’s health.’” Further, the court noted that “MCL 712A.13a(9) provides for the placement of a child in foster care if” certain conditions are met. Here, the “children were at a substantial risk of harm in respondent’s custody based on evidence of physical abuse, and maintaining custody was contrary to the children’s welfare because of that abuse. CPS made reasonable efforts to avoid placing the children in foster care by creating a safety plan with [the father of two of the children], but that plan failed. Accordingly, nonrelative foster care was the best means to safeguard the children’s health and welfare.”
Termination under § 19b(3)(k)(ii); Children’s best interests
Finding no clear error in these consolidated appeals, the court affirmed termination of respondent-father's parental rights to the eight children. The court found that § (k)(ii) existed. Also, it held that although the father had “not argued that the trial court committed clear error when it found that termination was in the children’s best interests, we have reviewed the record and we are satisfied with the trial court’s determination.” It focused “on the child, rather than the parent.” The children were removed after one of them, “JJ reported sexual abuse committed against her by father. At the best-interest hearing, JJ’s mother testified that her three children no longer had a bond with father after not seeing or hearing from him for the duration of the proceedings (as the referee had ordered). JJ’s mother testified that her children voiced no interest in seeing father.” The court acknowledged that “no testimony was submitted regarding the other children, but the trial court found JJ’s testimony about being sexually abused by father credible.” The trial court explained the father’s ‘“outright depravity’ of committing rape and incest against his daughter showed that ‘no child, biological or otherwise, would ever be safe around a person with that type of judgment.’” The court “will not disturb the trial court’s credibility determination,” so it readily accepted “the trial court’s analysis of the children’s best interests in termination of father’s parental rights.”