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Sabbagh v. Hamilton Psychological Services, PLC

Court of Appeals of Michigan

August 6, 2019

KHALED SABBAGH and FRED BERRY, Plaintiffs-Appellants,

          Macomb Circuit Court LC No. 2016-002908-CZ

          Before: Tukel, P.J., and Jansen and Riordan, JJ.

          TUKEL, P.J.

         In 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.

         I. DOCKET NO. 342150[1]

         This case arises from defendants' involvement in psychological evaluations given to plaintiffs in the 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.

         Both 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.

         In 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 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.

         Before 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 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."

         On 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."

         Months 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 course of their interviews that he was suffering from pain, neurological issues, or medical issues.

         Plaintiffs 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.[2] 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 report.

         On 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' 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 negligence.

         In 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.

         This 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 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.



         "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 against

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).]

         A "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:

(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 educational institution.

         Because Hamilton is a psychological practice and Ulliance is a human resources company, neither of which is included in MCL 333.20106(1), they "cannot be directly liable for medical malpractice in that capacity." Kuznar v Raksha Corp, 481 Mich. 169, 178; 750 N.W.2d 121 (2008). Thus, any claims of negligence against Hamilton and Ulliance must sound in ordinary negligence as opposed to medical malpractice.

         A "licensed health care professional" is "an individual licensed or registered under article 15 of the public health code . . . and engaged in the practice of his or her health profession in a sole proprietorship, partnership, professional corporation, or other business entity." MCL 600.5838a(1)(b). Frendo and Guertin are licensed and registered under article 15 of the Public Health Code, with Guertin being a licensed psychologist and Frendo holding a limited psychology license. MCL 333.18223(1) and (2). Therefore, they are both licensed health care professionals, MCL 600.5838a(1)(b), and thus "capable of malpractice," Bryant, 471 Mich. at 420. As our Supreme Court has noted, just because a party is capable of committing medical malpractice, it does not mean that a claim against that defendant "certainly sounds in medical malpractice." Id. at 421. To make this determination, a court must evaluate the nature of the claims themselves.


         "The second issue concerns whether the alleged claim sounds in medical malpractice." Id. at 422. To answer this question, courts make two determinations: whether there was a professional relationship, and whether the claim raises questions involving medical judgment. Id. at 422-423.

         "[M]edical malpractice can occur only within the course of a professional relationship." Id. at 422 (quotation marks and citation omitted).

A professional relationship sufficient to support a claim of medical malpractice exists in those cases in which a licensed health care professional, licensed health care facility, or the agents or employees of a licensed health care facility, were subject to a contractual duty that required that professional, that facility, or the agents or employees of that facility, to render professional health care services to the plaintiff. [Id. at 422-423.]

         In granting summary disposition in favor of Frendo and Guertin, the trial court relied on and applied Dyer v Trachtman, 470 Mich. 45; 679 N.W.2d 311 (2004). In Dyer, our Supreme Court held that in the context of an independent medical examination (IME), while no traditional physician-patient relationship exists between an IME examiner and an examinee, a limited professional relationship does arise. Id. at 49-50.[3] Explaining the reasoning behind its conclusion that a limited relationship exists, the Supreme Court stated:

In the particularized setting of an IME, the physician's goal is to gather information for the examinee or a third party for use in employment or related financial decisions. It is not to provide a diagnosis or treatment of medical conditions.
* * *
Likewise, other courts, including our Court of Appeals, have apparently recognized that the general duty of diagnosis and treatment is inappropriate in the IME setting given the purpose of the examination. [Id. at 51, 52.]

         And under this limited relationship, an examiner owes "fewer duties" to the examinee than would exist in a traditional physician-patient relationship. Id. at 53. But the limited relationship "still requires that the examiner conduct the examination in such a way as not to cause harm." Id. The Court explained:

The patient is not in a traditional professional relationship with the physician. Nonetheless, he places his physical person in the hands of another who holds that position solely because of his training and experience. The recognition of a limited relationship preserves the principle that the IME physician has undertaken limited duties but that he has done so in a situation where he is expected to exercise ...

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