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Stover v. Garfield9/14/2001
FOR PUBLICATION
Garnishee-defendant appeals from an order of the circuit court rejecting garnishee- defendant's motion for summary disposition and requiring garnishee-defendant to cover defendant Garfield's obligations under a prior consent judgment with plaintiff. We reverse.
Decedent Charles Dolan was admitted to Fenton Extended Care Center in March 1994, in an advanced state of illness and age that rendered him incompetent. Defendant Dr. James Garfield attended to defendant at the facility until decedent's death on April 22, 1994. According to the evidence, Dr. Garfield ordered discontinuation of oral and tube feeding and hydration of decedent, and of treatment for decedent's pneumonia, several days before the latter's death, relying on instructions from decedent's wife and her personal representative, neither of whom was legal guardian for decedent. The nursing home had initiated procedures for acquiring decedent's living will from decedent's family physician but was lackluster in following up on their request. Dr. Garfield testified on deposition that he knew of no living will associated with decedent, and had not asked about the existence of either a living will or a legal guardian.
Decedent's living will included a section for indicating treatments that the declarant wished not to be provided once death was unquestionably near. The form specifically listed the following examples: cardiac resuscitation, mechanical respiration, artificial feeding, and fluids by tubes. Decedent specified that only mechanical respiration was to be withheld. The document thus strongly implied that decedent did not consent to the withholding of artificial feeding or fluids by tubes, as was done in his case.
Plaintiff William Stover commenced action on behalf of decedent's survivors and estate, alleging that defendants improperly withheld food and water from decedent, in violation of the latter's written directives. Plaintiff openly took pains to avoid characterizing the action as one sounding in medical practice, expressly wishing to avoid the requirement of filing an affidavit of merit from a medical practitioner, as required in such actions by MCL 600.2912d; MSA 27A.2912(4). The trial court accepted plaintiff's characterizations and excused that requirement. Count I of the amended complaint alleged intentional misconduct in causing decedent's death. Count II alleged gross negligence, false imprisonment, assault and battery, and violations of various state and federal statutes. Count III alleged ordinary negligence.
Dr. Garfield had an insurance policy with garnishee-defendant. The policy promised to indemnify and defend Dr. Garfield in matters arising from claims against him in connection with his provision of medical services. The policy additionally capped garnishee-defendant's responsibility for Dr. Garfield's damages at $200,000, and excluded from coverage intentional misconduct and exemplary damages.
Garnishee-defendant initially took responsibility for the defense of this action, while reserving its right to withdraw in the event that a court determined that the claims at issue fell outside the policy's definition of professional services. Then, in response to the trial court's order stating that this was not a medical malpractice case, garnishee-defendant announced that the claims did not implicate the insurance policy, and declined to defend the suit further.
Plaintiff and defendants then stipulated to the entry of judgment in favor of plaintiff, against Dr. Garfield only, in the amount of $200,000, with interest and costs, to be satisfied solely through the proceeds the insurance policy with garnishee-defendant. The trial court
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