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OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE FINAL
PUBLICATION IN THE MICHIGAN COURT OF APPEALS REPORTS.
Circuit Court. LC No. 2016-002908-CZ. Macomb Circuit Court.
LC No. 2016-002908-CZ.
KHALED SABBAGH, Plaintiff-Appellant: NABIH H AYAD.
HAMILTON PSYCHOLOGICAL SERVICES PLC, Defendant-Appellee:
DANIEL I JEDELL.
SARAH GUERTIN, Defendant-Appellee: MICHAEL A COX.
ULLIANCE INC, Defendant-Appellee: KAY RIVEST BUTLER.
Before: TUKEL, P.J., and JANSEN and RIORDAN, JJ.
Mich.App. 330] Tukel, P.J.
Docket No. 342150, plaintiffs, Khaled Sabbagh and Fred Berry,
appeal as of right three January 9, 2018 orders, which
granted summary disposition to defendants, Ulliance, Inc.
(Ulliance), Dennis Frendo, Hamilton Psychological Services,
PLC (Hamilton), and Sarah Guertin. In Docket No. 343204,
defendant Ulliance appeals as of right the trial court's
April 4, 2018 order denying its motion for case-evaluation
sanctions against plaintiffs. Defendants Hamilton and Frendo
and, separately, defendant Guertin cross-appeal the same
order denying their motions for case-evaluation sanctions
against plaintiffs. For the reasons provided below, we affirm
in part, reverse in part, and remand.
DOCKET NO. 342150
case arises from defendants' involvement in psychological
evaluations given to plaintiffs in the [329 Mich.App. 331]
course of plaintiffs' separate applications for
employment with the Dearborn Police Department (DPD).
Sabbagh had been a deputy sheriff with the Wayne County
Sheriff's Department for 26 years and, beginning in
November 2015, worked there as a part-time project
consultant. Berry also had been a Wayne County deputy sheriff
from 1978 until his retirement. During his tenure, he also
had been an assistant director of the Wayne County
Sheriff's Homeland Security section. During their
careers, no questions ever had arisen regarding their mental
health or capacity.
plaintiffs applied for a part-time police officer position
with the DPD, with Berry applying in September 2013 and
Sabbagh applying in October 2013. As part of the application
process, Berry and Sabbagh each was required to undergo a
psychological evaluation to determine his mental and
emotional condition. DPD contracted with Ulliance, a human
resources company, to select licensed psychologists to
perform the evaluations. Ulliance, in turn, selected Hamilton
to conduct plaintiffs' evaluations for DPD.
Hamilton was established by Frendo in September 1994 as a
" service-oriented outpatient independent practice
providing a wide range of psychological services to children,
families and adults." Frendo was a licensed psychologist
with a doctorate degree who specialized in psychotherapy and
both neuro-psychological and psycho-educational assessments;
he did not specialize in personalities of individuals in
public safety or security.
September 2013, Hamilton engaged Guertin as an independent
contractor to provide outpatient counseling services at
Hamilton's premises. Guertin was a limited licensed
psychologist (LLP) with a master's degree. As an LLP,
Guertin was required to be supervised [329 Mich.App. 332] by
a fully licensed psychologist, in this case Frendo, who would
sign off on all psychological examinations or evaluations.
Guertin began performing law-enforcement psychological
evaluations in December 2013.
Sabbagh's psychological exam, he had an interview with
DPD that was extremely positive, and he was asked to consider
a full-time position with DPD, rather than just part-time
employment. On December 23, 2013, Sabbagh went to Hamilton
for the evaluation. Sabbagh and another man entered the
facility at the same time and were greeted by Guertin. The
two men's appointments had been scheduled for the same
time. Sabbagh offered to reschedule his appointment, but
Guertin insisted on conducting both evaluations at the same
time and placed the men in separate rooms.
Sabbagh's evaluation was Guertin's first
law-enforcement psychological evaluation. Guertin began
Sabbagh's evaluation by having him complete a
questionnaire, participate in oral exams, and answer
questions about his background and employment history.
Throughout the evaluation, Guertin went back and forth
between the two rooms every few minutes for extended periods
of time to conduct the other man's evaluation. At the
conclusion of the evaluation, Sabbagh provided his completed
questionnaire to a receptionist and did not see Guertin
again. Frendo did not conduct any part of the evaluation,
although he authored Sabbagh's evaluation report, dated
December 30, 2013. In that report, Frendo found Sabbagh to be
" highly defensive" and concluded that his testing
reflected a " number of attitudes and behaviors that
reflect symptomatic depression." The report continued,
" [Sabbagh] worries about his health and his physical
symptoms may be [329 Mich.App. 333] used to manipulate or
control others." Frendo ultimately " ha[d] concerns
regarding [Sabbagh's] emotional and physical status"
and recommended " a complete physical evaluation to rule
out any pre-existing condition that would interfere with his
ability to perform his duties as a Police Officer."
January 16, 2014, Berry went to Hamilton for his evaluation.
Berry was taken to a room and interviewed by Guertin. Berry
" was surprised to see that the interview conducted was
highly informal, with no recording device in the room,"
and Guertin took no notes during the interview. Frendo did
not interview Berry or take part in the evaluation, although
he also authored that report, dated the same day as the
evaluation. In that report, he
stated that Berry was " a 59 year old Arab American
male" who was " forced into retirement from the
Wayne County Sheriff's Department" and the "
target of an investigation" based on suspicions that he
was well-compensated. Frendo concluded the report with "
concerns" about Berry's " level of commitment
as well as his history while a Wayne County Sheriff" and
opined that Berry's " pattern of responses
indicate[d] concerns regarding his physical health."
after the evaluation was administered, the director of human
resources for the city of Dearborn contacted Berry and
informed him that he had not passed his pre-employment
evaluation, at which time Berry requested a copy of the
report Hamilton had provided to Dearborn. Sabbagh heard back
from the DPD's human resources department in April 2014
and learned the contents of Frendo's report. Sabbagh and
Berry both were shocked by the reports. Plaintiffs claimed
that neither of them had indicated during the [329 Mich.App.
334] course of their interviews that he was suffering from
pain, neurological issues, or medical issues.
filed their complaint on August 16, 2016. The complaint
contained five counts. The counts at issue in this appeal are
Counts II— gross negligence as to defendants Frendo,
Guertin, and Hamilton; Count IV— negligence and
vicarious liability as to defendant Hamilton; and Count
V— negligence as to defendant Ulliance. Plaintiffs
alleged that Ulliance negligently selected Hamilton to
conduct the evaluations; Hamilton negligently scheduled
Sabbagh and the other, unknown individual for simultaneous
assessments; and Guertin carelessly and unprofessionally
continued to leave Sabbagh's interview to conduct the
other evaluation. Plaintiffs further alleged that Frendo,
Guertin, and Hamilton carelessly performed the psychological
assessments; knowingly authored a false psychological
examination report; and failed to verify the contents of the
October 16, 2017, Ulliance moved for summary disposition
under MCR 2.116(C)(7) and (10), arguing that the
" professional negligence" count was actually a
malpractice claim that was time-barred and that, in any
event, there was no basis for an ordinary negligence claim
because there was insufficient evidence to support a finding
of a duty, breach of duty, injury, or proximate causation.
Hamilton and Frendo subsequently filed a motion for summary
disposition under both MCR 2.116(C)(7) and (10),
arguing that plaintiffs' [329 Mich.App. 335] claims
sounded in malpractice and were time-barred and that there
was no evidence that Hamilton or Frendo deviated from the
standard of care. Guertin also moved for summary disposition
under MCR 2.116(C)(7), (8), and (10) and argued that
the claims sounded in malpractice and were time-barred.
Guertin further argued that even if the claims were not
time-barred, plaintiffs had failed to raise a genuine issue
of material fact that Guertin's alleged actions rose to
the level of reckless or wanton conduct necessary for gross
separate opinions and orders, the trial court granted the
three outstanding motions for summary disposition. The court
rejected the argument that plaintiffs' negligence claims
sounded in medical malpractice. Nevertheless, the court ruled
that plaintiffs' claims lacked evidentiary and legal
support under a common-law tort theory.
Court reviews de novo a trial court's decision to grant
summary disposition, Barnard Mfg Co, Inc v Gates
Performance Engineering, Inc, 285 Mich.App. 362, 369;
775 N.W.2d 618 (2009), including whether a cause of action is
barred by a statute of limitations, Collins v Comerica
Bank, 468 Mich. 628, 631; 664 N.W.2d 713 (2003). This
Court also reviews de novo questions of statutory
interpretation. Adams Outdoor Advertising, Inc v City of
Holland, 463 Mich. 675, 681; 625 N.W.2d 377 (2001).
Summary disposition under MCR 2.116(C)(7) is
appropriate if a claim is barred because of the statute of
limitations. Summary disposition is appropriate under MCR
2.116(C)(8) if the plaintiffs have failed to state a claim on
which relief can be granted. Wade v Dep't of
Corrections, 439 Mich. 158, 162; 483 N.W.2d 26 (1992).
Under both (C)(7) and (C)(8), all well-pleaded allegations
[329 Mich.App. 336] must be both accepted as true and
construed in the light most favorable to the nonmoving party.
Id. at 162-163 . However, under MCR
2.116(C)(7), the court must consider all of the
documentary evidence submitted by the parties, while under
MCR 2.116(C)(8), the court must test the legal
sufficiency of the complaint considering only the pleadings.
MCR 2.116(G)(5) ; Wade, 439 Mich. at 162 .
PLAINTIFFS' CLAIMS SOUND IN MEDICAL MALPRACTICE OR
WHICH DEFENDANTS HAVE THE LEGAL CAPACITY TO BE HELD LIABLE
FOR MEDICAL MALPRACTICE?
The first issue in any purported medical malpractice case
concerns whether it is being brought against someone who, or
an entity that, is capable of malpractice." Bryant v
Oakpointe Villa Nursing Center, Inc, 471 Mich. 411, 420;
684 N.W.2d 864 (2004). Medical malpractice claims may be made
a person or entity who is or who holds himself or herself out
to be a licensed health care professional, licensed health
facility or agency, or an employee or agent of a licensed
health facility or agency who is engaging in or otherwise
assisting in medical care or treatment, whether or not the
licensed health care professional, licensed health facility
or agency, or their employee or agent is engaged in the
practice of the health profession in a sole proprietorship,
partnership, professional corporation, or other business
entity. [MCL 600.5838a(1).]
" licensed health facility or agency" is " a
health facility or agency licensed under article 17 of the
public health code . . . ." MCL
600.5838a(1)(a). MCL 333.20106(1) defines "
health facility or agency" as follows:
[329 Mich.App. 337] (a) An ambulance operation, aircraft
transport operation, nontransport prehospital life support
operation, or medical first response service.
(b) A county medical care facility.
(c) A freestanding surgical outpatient facility.
(d) A health maintenance organization.
(e) A home for the aged.
(f) A hospital.
(g) A nursing home.
(h) A hospice.
(i) A hospice residence.
(j) A facility or agency listed in subdivisions (a) to (g)
located in a university, college, or other ...