Lavallii v. Jackson

1

SAYLOR LAVALLII, Plaintiff-Appellee, v. DR. MATTHEW R. JACKSON, Defendant-Appellant, and CENTRAL MICHIGAN UNIVERSITY, CENTRAL MICHIGAN MEDICAL STAFF, CENTRAL MICHIGAN HEALTH, JOHN BONAMEGO, GINO GUIDUGLI, BENJY WILBER, DR. GEORGE E. ROSS, DAVE HEEKE, and CENTRAL MICHIGAN UNIVERSITY BOARD OF REGENTS, Defendants. SAYLOR LAVALLII, Plaintiff-Appellee, v. DR. MATTHEW R. JACKSON, Defendant-Appellant.

Nos. 354833, 354899

Court of Appeals of Michigan

January 13, 2022

UNPUBLISHED

Court of Claims LC Nos. 18-000036-MK, 18-000107-MZ

Before: Swartzle, P.J., and K. F. Kelly and Redford, JJ.

Per Curiam.

In these consolidated appeals, ^[1] defendant, Dr. Matthew R Jackson, appeals the trial court's order denying his motion for summary disposition under MCR 2.116(C)(7) and (8). We affirm the trial court's order denying Dr Jackson's motion for summary disposition under MCR 2.116(C)(7), but decline to address its order denying summary disposition under MCR 2.116(C)(8) because we do not have jurisdiction over that issue and Dr. Jackson has not asked for leave to appeal that issue.

I. BACKGROUND

This case has already appeared before this Court in Lavallii v Central Mich. Univ, unpublished per curiam opinion of the Court of Appeals, issued February 11, 2020 (Docket Nos. 346803; 346804). As this court explained in that case:

Plaintiff alleged before the Court of Claims that, as a student at Central Michigan University (CMU), plaintiff played football for the school from 2012 through 2014. After plaintiff's third year, plaintiff consulted with the former team doctor and the coaching staff about concussion-like symptoms and the possibility of taking a nonmedical "redshirt" year and not playing during the 2015 season, with the understanding that he would resume playing the following year. The coaching staff and athletic department subsequently asked plaintiff to take a "medical, noncount redshirt year," meaning that plaintiff's scholarship would not count against the total number of scholarships available to the team. Plaintiff agreed to this plan, but he alleged that he was not informed that this plan required him to be medically disqualified for the 2015 season and medically cleared the following year. In the meantime, plaintiff treated with doctors not affiliated with CMU, who concluded that plaintiff was medically able to resume playing football. Plaintiff alleged that, armed with this information, he met with the new team doctor, Dr. Jackson, who did not examine plaintiff and, at the same time, refused to give plaintiff medical clearance to resume playing. Plaintiff was notified by the athletic director by e-mail dated June 17, 2016, that plaintiff remained medically disqualified from rejoining the football team on the basis of Dr. Jackson's recommendation. [Id. at 2.]

Dr. Jackson wrote a letter to Dave Heeke, the Central Michigan University "Associate Vice President/Director of Athletics," explaining why he declined to clear plaintiff medically to rejoin the football team. In that letter, Dr. Jackson stated that he reviewed plaintiff's medical records and history, discussed plaintiff's case with then-current staff who had provided medical care to plaintiff at Central Michigan University, and talked to plaintiff directly. Dr. Jackson considered all of this information before determining that he could not clear plaintiff medically to play football again.

Dr. Jackson concluded his letter by stating, "This assessment falls in line with current NCAA and The American Medical Society of Sports Medicine (AMSSM) medical best practice guidelines. Further, CMU Sports Medicines' guidelines reflect the above and are in place to ensure the health, safety and long-term well-being of our student-athletes, no matter the difficulty of the situation."

Plaintiff sued defendants alleging, in relevant part, that Dr. Jackson committed medical malpractice by failing to examine plaintiff adequately and clear him medically to play football again. Dr. Jackson moved for summary disposition, arguing that plaintiff failed to comply with the notice requirements of MCL 600.6431(1). The trial court granted summary disposition to Dr. Jackson and Central Michigan Health, but plaintiff appealed that decision to this Court. This Court affirmed the trial court's order granting summary disposition to Central Michigan Health, but reversed its order granting summary disposition to Dr. Jackson and remanded for further proceedings. Lavallii, unpub op at 3-7. After this Court's remand order, Dr. Jackson was the only remaining defendant. Id. at 7.

On remand, Dr. Jackson again moved for summary disposition, under MCR 2.116(C)(7) and (8), this time arguing that his decision to disqualify plaintiff medically from rejoining the football team was merely an "administrative" decision and, therefore, he was entitled to governmental immunity because the governmental-hospital exception did not apply. In the alternative, Dr. Jackson argued that he was entitled to summary disposition on the basis that the affidavit of merit plaintiff attached to his complaint did not comply with the requirements of MCL 600.2912d. The trial court denied Dr. Jackson's motion for summary disposition. This appeal followed.

II. ANALYSIS

A. JURISDICTION

Dr. Jackson claimed an appeal as of right in this case and plaintiff agreed with Dr. Jackson that we have jurisdiction over these appeals. But "[t]he question of jurisdiction is always within the scope of this Court's review." Walsh v Taylor, 263 Mich.App. 618, 622; 689 N.W.2d 506 (2004). Additionally, our jurisdiction "is generally limited to final judgments and orders." Id. See also MCR 7.203. In relevant part, MCR 7.202(6)(a) defines "final judgment" and "final order" as

(i) the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties, including such an order entered after reversal of an earlier final judgment or order;

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(v) an order denying governmental immunity to a governmental party, including a governmental agency, official, or employee under MCR 2.116(C)(7) or an order denying a motion for summary disposition under MCR 2.116(C)(10) based on a claim of governmental immunity.

Dr. Jackson claimed an appeal of right because the trial court denied his motion for summary disposition based on governmental-immunity grounds. Dr. Jackson is correct that we have jurisdiction over his MCR 2.116(C)(7)-governmental-immunity claim because the trial court entered a "final order" when it denied his motion for summary disposition under MCR 2.116(C)(7). See MCR 7.202(6)(a)(v); MCR 7.203(A)(1). But Dr. Jackson has not explained how we have jurisdiction over his MCR 2.116(C)(8) claim that plaintiff's affidavit of merit was deficient. The trial court's order denying Dr. Jackson's motion for summary disposition did not "dispose[] of all the claims and adjudicate[] the rights and liabilities of all the parties." MCR 7.202(6)(a)(i). Additionally, an order denying a motion for summary disposition under MCR 2.116(C)(8) does not qualify as a final order under MCR 7.202(6)(a)(v). And none of the other definitions in MCR 7.202(6)(a) are applicable in this case. Thus, we do not have jurisdiction over Dr. Jackson's claim that the trial court erred by denying his motion for summary disposition under MCR 2.116(C)(8). See MCR 7.202(6)(a)(v); MCR 7.203(A)(1). See also Hart v State, 506 Mich. 857, __; 946 N.W.2d 285, 288-289 (2020) (Clement, J., concurring); MCL 600.308(2)(c). Accordingly, our review is limited to Dr. Jackson's MCR 2.116(C)(7)-governmental-immunity claim.

B. GOVERNMENTAL IMMUNITY

Dr. Jackson argues that the governmental-hospital exception, MCL 691.1407(4), applies to only medical-malpractice claims. He maintains that plaintiff's claim is one sounding in ordinary negligence, and, therefore, the exception does not apply in this case. Dr. Jackson additionally argues that the governmental-hospital exception does not apply because he did not "provid[e] medical care or treatment to a patient," MCL 691.1407(4), when he declined to clear plaintiff medically to rejoin the football team.

"We review de novo a trial court's decision to grant or deny a motion for summary disposition." Sherman v City of St Joseph, 332 Mich.App. 626, 632; 957 N.W.2d 838 (2020) (citations omitted). "Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Id. In reviewing a trial court's decision under MCR 2.116(C)(7), we consider the record evidence to determine whether the defendant is entitled to immunity. Poppen v Tovey, 256 Mich.App. 351, 353-354; 664 N.W.2d 269 (2003). "The facts as alleged in the complaint must be accepted as true unless contradicted by the submitted evidence, and the court must evaluate all the evidence in a light most favorable to the nonmoving party for purposes of MCR 2.116(C)(7)." Reed v State, 324 Mich.App. 449, 452; 922 N.W.2d 386 (2018) (cleaned up).

We also review de novo the application of a statutory exception to governmental immunity. Reed, 324 Mich.App. at 452. "Statutory provisions must be read in the context of the entire act, giving every word its plain and ordinary meaning. When the language is clear and unambiguous, we will apply the statute as written and judicial construction is not permitted." Driver v Naini, 490 Mich. 239, 246-247; 802 N.W.2d 311 (2011).

"Under the governmental tort liability act, MCL 691.1401 et seq., unless one of five exceptions applies governmental agencies are immune from tort liability when they are engaged in a governmental function." Wigfall v Detroit, 504 Mich. 330, 337; 934 N.W.2d 760 (2019). Plaintiff seeks to avoid governmental immunity by using the...