Opinion
Docket No. 124942.
Decided July 3, 1990.
Ronald B. Maister and Monica Farris Linkner, for plaintiff.
Boothman, Hebert, Eller Yockey, P.C. (by Dale L. Hebert), for defendants.
Before: DANHOF, C.J., and HOLBROOK, JR. and CYNAR, JJ.
This case comes before us on remand from the Supreme Court "for reconsideration in light of Stein v Southeastern Michigan Family Planning [Project, Inc], 432 Mich. 198 [ 438 N.W.2d 76] (1989), and in light of the fact that the plaintiff did not raise the issue whether the decision in Ross v Consumers Power Co (On Rehearing), 420 Mich. 567 [ 363 N.W.2d 641] (1984), should be applied to this case until she filed her motion for rehearing with the Court of Appeals." 434 Mich. 851 (1990).
In Stein, the Supreme Court held that a hospital owned by a governmental entity that did not challenge the correctness of the Supreme Court's decision in Parker v Highland Park, 404 Mich. 183; 273 N.W.2d 413 (1978), or assert a defense of governmental immunity before Ross, supra, was decided, had not raised or preserved the issue. Stein, 203.
In this case, plaintiff filed a medical malpractice action against defendants in September, 1984. Ross was decided in December, 1984. In October, 1986, the Supreme Court in Hyde v University of Michigan Bd of Regents, 426 Mich. 223; 393 N.W.2d 847 (1986), "limited" the retroactivity of Ross. On November 7, 1986, the Washtenaw Circuit Court granted defendants' motion for summary disposition on the grounds of governmental immunity, relying on the Supreme Court's decision in Ross. Plaintiff appealed to this Court only with regard to individual defendants Drs. Drescher and Hebert. In November, 1988, this Court affirmed the trial court's decision. Joplin v University of Michigan Bd of Regents, 173 Mich. App. 149; 433 N.W.2d 830 (1988). In February, 1989, plaintiff's motion for rehearing was denied.
On remand, we affirm our prior decision. We find that regardless of whether defendant hospital would be granted governmental immunity under Hyde and Stein, regardless of whether the holding of Stein applied to defendants individually, and regardless of whether defendant doctors would be individually immune under Hyde, plaintiff did not timely challenge the applicability of defendant doctors' individual immunity under Ross until her motion for rehearing in this Court. Therefore, plaintiff's challenge has been waived and our prior decision stands.
Affirmed.