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Compensation for failing to warn about risk of smallpox vaccination to immunosuppressed child - Rozier v. Department of Public Health, 161 Mich.App. 591, 411 N.W.2d 786 (Mich.App. 1987), appeal denied (Mar 22, 1988)

[1]     COURT OF APPEALS OF MICHIGAN

[2]     Docket No. 82558

[3]     1987.MI.1225 <http://www.versuslaw.com>, 411 N.W.2d 786, 161 Mich. App. 591

[4]     July 20, 1987

[5]     JOHN ROZIER, JR., PLAINTIFF-APPELLEE,
v.
STATE OF MICHIGAN, DEPARTMENT OF PUBLIC HEALTH, DEFENDANT-APPELLANT


[6]     Charfoos & Christensen, P.C. (by L. S. Charfoos, Charles L. Nichols and David R. Parker), for plaintiff.

[7]     Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and James L. Stropkai, Vincent J. Leone and Constance Y. Ross, Assistant Attorneys General, for defendant.

[8]     M. J. Kelly, P.j., and Hood and E. F. Oppliger,* JJ.

[9]     The opinion of the court was delivered by: Per Curiam

[10]    On December 26, 1984, the Court of Claims entered judgment in the amount of $590,260 in favor of plaintiff in plaintiff's product liability suit against defendant, arising out of injuries sustained by plaintiff as a result of a smallpox vaccination he received in 1963. Defendant appeals as of right.

[11]    Plaintiff was born on July 29, 1962. In the next year and a half, plaintiff developed various infections, requiring treatment. The first of these treatments occurred April 28, 1963, when he entered McLaren Hospital in Flint with bronchitis. Plaintiff was hospitalized for twenty-one days and had a fever for the first seven days. Plaintiff's family physician advised plaintiff's parents not to have plaintiff immunized against any diseases until he was feeling better. On June 3, 1963, plaintiff was treated for a cold and sore throat. On June 17, 1963, plaintiff was given medication for a respiratory tract infection. On June 22, 1963, plaintiff was treated for otitis media, an ear infection, and received treatment for the ailment again on July 26, 1963. On August 10, 1963, plaintiff was treated for an upper respiratory infection. Plaintiff was last seen on August 22, 1963, but it is not known whether a diagnosis was made at that time.

[12]    Plaintiff remained apparently healthy until October 22, 1963, when his mother took him to the Genesee County Health Department for a smallpox vaccination. The vaccine was manufactured and distributed by defendant. Plaintiff had been vaccinated for DTP and polio in January, February and March, 1963.

[13]    According to plaintiff's mother, a few weeks after the smallpox vaccination a scab formed and then fell off. However, a few days later another scab formed and plaintiff developed a red rash. Plaintiff's mother called the county health department and was told to place a plastic shield over the vaccination spot. A few days later, plaintiff started to run a temperature, and on December 22, 1963, was admitted to McLaren Hospital. Plaintiff was admitted with otitis media and tracheo bronchitis. On the tenth day of plaintiff's hospitalization, his parotid glands became swollen and doctors believed that he had the mumps. Also on the tenth day, plaintiff's vaccination site was first mentioned on his chart -- it was noted that the vaccination was "still active."

[14]    After three weeks in McLaren Hospital, plaintiff was transferred to Hurley Hospital's isolation unit. On January 22, 1964, plaintiff was diagnosed as having agammaglobulinemia, which is an immune deficiency. Children with immune deficiencies like agammaglobulinemia should not be vaccinated for smallpox, as they cannot put up an adequate defense against the smallpox vaccine which itself contains a live virus. Frequent infections are a symptom of agammaglobulinemia. Because the nurses who vaccinated plaintiff did not know that plaintiff had agammaglobulinemia, plaintiff was vaccinated. He developed generalized vaccinia, which is the spread of the vaccinia virus throughout the whole body, and vaccinia necrosum, which is the death of tissue caused by the progressive vaccinia. Plaintiff was transferred to the University of Colorado Medical Center on January 24, 1964, where he was treated by Dr. C. Henry Kempe, an expert on complications resulting from smallpox vaccinations, and by Dr. Vincent Fuljiniti. Drs. Kempe and Fuljiniti determined that plaintiff suffered from agammaglobulinemia.

[15]    Plaintiff's left arm had become swollen while still in Flint, and bumps appeared on his nose. Before going to Colorado, plaintiff's vaccination spot had grown to the size of a fifty-cent piece. In Colorado, the spot continued to grow and scabs formed over most of his body. Plaintiff's left arm continued to swell and eventually turned black and had to be amputated. A few weeks later, his left shoulder was amputated. Much of plaintiff's face and body was left scarred.

[16]    On January 23, 1979, plaintiff filed suit against defendant. Plaintiff alleged that defendant was liable for his injuries because defendant failed to include in its package insert accompanying the smallpox vaccine a warning that children with immune deficiencies or chronic infections should not be immunized with the vaccine. Plaintiff claimed that, had such a warning been provided, the nurses who immunized plaintiff would have been alerted to ask plaintiff's mother whether plaintiff suffered from an immune deficiency or had had many infections. Defendant filed a motion for summary judgment, alleging it was immune from suit under the doctrine of governmental immunity. The court denied the motion, finding that when plaintiff filed suit defendant was not covered by common-law or statutory governmental immunity. The court based its decision on Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), in which common-law governmental immunity was abrogated.

[17]    The case went to trial without a jury. On November 19, 1984, the court issued its findings of fact and Conclusions of law. The court found that defendant was negligent in failing to warn of the dangers of immunizing an immune-deficient child and that defendant's negligence was a proximate cause of plaintiff's injuries. On December 26, 1984, the court entered judgment in favor of plaintiff in the amount of $814,620. This amount was reduced by $224,360, which was the amount of a settlement between plaintiff and Genesee County. The final judgment was thus $590,260.

[18]    On appeal, defendant first claims that the court erred in ruling that defendant was not covered by governmental immunity. Defendant argues that Pittman should not be applied to cases which were filed after Pittman was decided, but in which the cause of action accrued before such date. We disagree.

[19]    In Pittman, the Supreme Court abrogated the common-law defense of state governmental immunity. The Court further held that " holding we announce today is prospective, with the exception of the instant case and any cases now pending in which an express challenge to the common-law defense of governmental immunity had been made and preserved." Pittman, supra, p 50. The Court cited Bricker v Green, 313 Mich 218; 21 NW2d 105 (1946), in which the Court held that its new rule abrogating imputed negligence would be applied to "pending and future cases." Bricker, supra, p 236. Neither the Pittman Court nor the Bricker Court addressed the issue of whether "future cases" included cases commenced after the date of its decision whose causes of action accrued before the date of its decision. We believe that the trial court's Conclusion that Pittman applies to deprive defendant of the defense of governmental immunity is correct.

[20]    In analyzing the issue whether Pittman operates to deprive defendant of its defense, it is helpful to examine previous cases in which our Supreme Court has decided the application of new rules of law. In Murray v Beyer Memorial Hospital, 409 Mich 217; 293 NW2d 341 (1980), the Court determined the application of Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978). The Court in Parker v Highland Park had held that municipally owned general hospitals did not enjoy governmental immunity. The Murray Court held:

[21]    rule of Parker is to be applied to all cases pending on December 27, 1978, in which an express challenge to the defense of governmental immunity was made and preserved as well as all cases started after that date. See Placek v Sterling Heights, 405 Mich 638, 662-668; 275 NW2d 511 (1979); Pittman v City of Taylor, 398 Mich 41, 50; 247 NW2d 512 (1976); Daley v LaCroix, 384 Mich 4, 14; 179 NW2d 390 (1970); Bricker v Green, 313 Mich 218, 236; 21 NW2d 105 (1946). [ Murray, supra, pp 221-222.]

[22]    In Placek, supra, the Court adopted the doctrine of comparative negligence and then determined to what extent the new rule should be applied. The Court first noted that there are three main categories of application:

[23]    A new rule can be (1) made applicable to all cases in which a cause of action has accrued and which are still lawfully pending and all future cases, (2) made applicable to the case at bar and all future cases or (3) made to exclude the case at bar but be made applicable to all cases to be filed hereafter or after an arbitrary control date specified herein. See Myers v Genesee County Auditor, 375 Mich 1, 11; 133 NW2d 190 (1965). [ Placek, supra, p 662.]

[24]    In Myers, supra, the Court stated:

[25]    We now take up the question whether decision here is to (1) include the case at bar; (2) exclude the case at bar but be made to apply to all cases to be decided hereafter or after an arbitrary control date herein specified; (3) be made applicable to all cases in which a cause of action has accrued, the assertion of which is not barred by other defenses, including but not limited to statutes providing for the limitation of actions.

[26]    When we overruled the doctrine of imputed negligence . . . we did so as to "pending and future cases" as well as to that case itself. See Bricker v Green, 313 Mich 218 [236; 21 NW2d 105; 163 ALR 697 (1946)]. We adopt the same policy here. [ Meyers, supra, p 11.]

[27]    Thus, the new rule was to be applicable to a case filed after Myers was issued in which the cause of action had previously accrued. Placek followed Myers in holding that the new rule was

[28]    applicable to the instant case and all appropriate cases in which trial commences after the date of this opinion including those in which a retrial is to occur because of remand on any other issue. Further, we find comparative negligence applicable to any case presently pending on appeal in which application of the doctrine was requested at the trial court and the issue preserved for appeal. Finally, comparative negligence shall be the applicable rule in any case commenced but not submitted to the trier of fact prior to the date of this decision, but in no case shall it apply unless there is an appropriate request by counsel prior to submission to the trier of fact. [ Placek, supra, pp 667-668.]

[29]    In contrast to Murray, Placek and Myers, is Parker v Port Huron Hospital, 361 Mich 1; 105 NW2d 1 (1960). Parker v Port Huron Hospital abolished the immunity from tort liability formerly enjoyed by charitable, nonprofit hospitals and declared that the new rule would "apply to the instant case and to all future causes of action arising after September 15, 1960, the date of the filing of this opinion." Parker v Port Huron Hospital, supra, p 28. Charitable hospitals therefore retained their immunity from liability for injuries caused by the negligence of their employees before the filing of the opinion. Justice and fairness required this result because some charitable, nonprofit hospital corporations may have relied on the old rule and failed to protect themselves with insurance. It seems probable that had the Pittman Court intended its rule to be applied only to future causes of action, it would have cited Parker v Port Huron Hospital, rather than Bricker v Green, supra.

[30]    A finding that the Pittman rule operates retroactively to eliminate the state's immunity defense comports with the general rule that appellate court decisions are to be given full retroactive effect unless limited retroactivity is preferred where justified by (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect that retroactivity will have on the administration of Justice. Tebo v Havlik, 418 Mich 350, 360-361; 343 NW2d 181 (1984); King v General Motors Corp, 136 Mich App 301, 306; 356 NW2d 626 (1984), lv den 422 Mich 871 (1985). The purpose of the new rule, to provide fairness and Justice to those injured by wrongful conduct on the part of the state, Pittman, supra, p 48, is furthered by retroactivity. With respect to the reliance factor, Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), which abrogated governmental immunity for municipal corporations, put the state on notice that the continued existence of the doctrine of governmental immunity was uncertain. Retroactivity should not be detrimental to the administration of Justice, since the state now enjoys governmental immunity, and most suits in which the cause of action accrued before August 1, 1970, the effective date of MCL 691.1407; MSA 3.996(107), would be barred by the statute of limitations. And, as plaintiff points out, since statutory governmental immunity precluded successful actions on most claims arising after the Pittman decision, "future cases" could only mean cases whose causes of action arose before the filing of the Pittman decision but which were not commenced until after it.

[31]    Defendant alternatively argues that it is immune under the provisions of the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996 (101) et seq., as amended in 1970. Defendant asserts that the act applies to plaintiff's claim because he did not bring suit until January, 1979. This argument is meritless, as the issue of governmental immunity must be resolved according to the law as it existed at the time that the cause of action accrued. Pittman, supra, p 46.

[32]    Thus, we feel that the trial court correctly held that defendant was not entitled to governmental immunity.

[33]    Next, defendant claims that the trial court erred in finding that defendant was negligent and that defendant's negligence was a proximate cause of plaintiff's injuries. The findings of fact of a trial court sitting without a jury will not be set aside unless they are clearly erroneous. MCR 2.613(C), formerly GCR 1963, 517.1. A finding is clearly erroneous if, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Tuttle v Dep't of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976); Auto Electric & Service Corp v Rockwell International Corp, 111 Mich App 292, 296; 314 NW2d 592 (1981), lv den 414 Mich 936 (1982). In the instant case, the trial court made extensive findings of fact. We have carefully reviewed the record and find that these findings are not clearly erroneous.

[34]    Plaintiff has filed in this Court a "Delayed Brief on Cross-Appeal." Plaintiff stated in this brief that he filed a timely claim of cross-appeal from the judgment, appealing from the court's denial of his motion for new trial to amend the findings of facts and Conclusions of law pursuant to GCR 1963, 527.1, now MCR 2.611(A)(2)(c), in which he requested the court to increase the damage award to take into account inflation. Plaintiff obtained a stipulation in this Court for an extension of twenty-eight days to file an appellate brief, but that period expired in August, 1986. Plaintiff claims that no appellate brief was filed because of the holding in Bosak v Hutchinson, 422 Mich 712; 375 NW2d 333 (1985). In Bosak, the Court held that, in light of the lack of testimony on the subject of inflation, the trial court was correct in refusing to instruct the jury to take into account a thirteen percent rate of inflation in calculating the plaintiffs' future damages. Bosak, supra, p 747. Since plaintiff in the instant case had provided no testimony on inflation, plaintiff claims that he felt an appellate brief on the issue would have been futile. Plaintiff urges that he should now be allowed to file an appellate brief, in light of Kovacs v Chesapeake & Ohio R Co, 426 Mich 647; 397 NW2d 169 (1986). In Kovacs, the Court held that the trial court was correct in instructing the jury that it could consider the effect of inflation on the amount of damages it found the plaintiff to have suffered. The Court stated that the plaintiff should not be required to first introduce evidence on inflation, since inflation is a fact known to every juror without expert testimony. Kovacs, supra, p 651.

[35]    We feel that the posture of Bosak and Kovacs did not warrant plaintiff's failure to file a timely appellate brief and does not warrant the allowance of the filing of a delayed appellate brief. A close reading of Bosak and Kovacs reveals that Kovacs did not overrule Bosak. Rather, each was decided on its own facts. The fact that the Bosak Court found no error in the trial court's refusal to instruct does not mean that the trial court's refusal to take into consideration inflation in the instant case would have been upheld. Indeed, at the time Bosak was decided, plaintiff still had the benefit of this Court's decision in Kovacs, in which we affirmed an instruction in which the trial court instructed the jury to consider inflation. Kovacs v Chesapeake & Ohio R Co, 134 Mich App 514; 351 NW2d 581 (1984). The Bosak Court recognized the Kovacs decision and distinguished it because the instruction in Kovacs was general, while the Bosak plaintiffs wished a specific instruction regarding a thirteen percent rate of inflation. Bosak, supra, p 747. Plaintiff in the instant case could have cited this Court's Kovacs decision in his appellate brief. Although leave to appeal in Kovacs had been granted, plaintiff could have preserved the issue for appeal to the Supreme Court by filing an appellate brief in this Court. Thus, we feel that, since plaintiff's reasoning for failure to file a timely appellate brief was not sound, plaintiff should not be allowed to file a tardy appellate brief.

[36]    Because we hold that defendant is not covered by governmental immunity, we need not address defendant's claim that the manufacture and distribution of the smallpox vaccine was a governmental function.

[37]    Affirmed.

 
 Opinion Footnotes
 
[38]    * Circuit Judge, sitting on the Court of Appeals by assignment.

19870720

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