                           STATE OF MICHIGAN

                           COURT OF APPEALS


OMRAN DAHER, Minor, by Next Friend                                 UNPUBLISHED
MOHAMAD DAHER,                                                     January 3, 2019

              Plaintiff-Appellant,

v                                                                  No. 337510
                                                                   Wayne Circuit Court
BCA OF DETROIT, LLC, doing business as                             LC No. 16-011719-NO
STONE CREST CENTER, and LUAY HADDAD,

              Defendants-Appellees,

and

ALAA DAHER,

              Defendant.


Before: M. J. KELLY, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

        Mohamad Daher, as next friend of nine-year-old Omran Daher, brought this action
against defendants BCA of Detroit and Dr. Luay Haddad, alleging that they were negligent and
grossly negligent for discharging a psychiatric patient, defendant Alaa Daher, without warning
his family that he posed a danger to others.1 Mohamad appeals as of right the trial court’s order
granting summary disposition in favor of defendants under MCR 2.116(C)(8) and MCR
2.116(C)(10). We reverse and remand.

        Alaa Daher is Omran’s adult brother. In October 2015, Alaa was hospitalized after
suffering from severe mental illness, including paranoid schizophrenia. A petition for
hospitalization, which was filed in the Wayne County Probate Court, alleged that Alaa had told a
nurse that he was “God” and had threatened to kill police officers or anyone who “messe[d]


1
  Mohamad is Omran’s father; he is also the father of defendant Alaa Daher, who, following his
discharge from psychiatric treatment, stabbed and seriously injured Omran. Alaa was apparently
never served with process in these proceedings, and he is not a party to this appeal.


                                               -1-
with” his family. Thereafter, by order of the Wayne County Probate Court, Alaa was transferred
to BCA’s facility, Stone Crest Center, where he stayed for approximately 13 days. During his
time at Stone Crest, he was treated by defendant Haddad, a psychiatrist. On October 16, 2015,
Haddad wrote in a letter that he had diagnosed Alaa with schizophrenia and that he
recommended that an emergency guardian be appointed for Alaa. The letter also stated that Alaa
“was a danger to himself and others because of his delusional, paranoid, and grandiose thought
process, cognitive defects, and potential for elopement.” Three days later, Mohamad received a
phone call from an unknown social worker, advising that Alaa was “fine” and was being
discharged. A discharge notice indicates that Alaa denied any suicidal or homicidal ideations.
However, within three hours of his arrival at home, Alaa stabbed Omran 13 times. Omran
suffered serious injuries and spent three days in the hospital for treatment.

       Mohamad, as Omran’s next friend, filed this suit against defendants for negligence and
gross negligence stemming from their discharge of Alaa. The complaint alleged that defendants
had breached their duty of care by failing to advise Alaa’s family that he posed a danger to
others. Further, it alleged that this constituted gross negligence because it demonstrated a
substantial lack of concern for Omran.

        Defendants moved for summary disposition under MCR 2.116(C)(7), (8), and (10),
arguing that plaintiff’s complaint sounded in medical malpractice, that their statutory duty to
warn under MCL 300.1946(1) was not triggered because Alaa made no threat of violence against
a reasonably identifiable third person, and that there was no common-law duty to warn third
persons of any potential danger posed by Alaa. In response, Mohamad contended that the lack of
a physician-patient relationship rendered his complaint properly brought as a negligence lawsuit
and that summary disposition was premature because he was not yet able to conduct discovery
and review Alaa’s medical records. He also maintained that a mental health professional’s
common-law duty to warn third parties was not abrogated by MCL 330.1946. The trial court
granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(8) and (10) on
the basis that plaintiff was unable to identify a threat of violence against a reasonably identifiable
third person.

       On appeal, plaintiff argues that the trial court erred by granting summary disposition
before any substantive discovery was conducted. We agree.

      We review de novo a trial court’s ruling on a motion for summary disposition. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).

               A motion under MCR 2.116(C)(8) tests the legal sufficiency of the
       complaint. All well-pleaded factual allegations are accepted as true and construed
       in a light most favorable to the nonmovant. A motion under MCR 2.116(C)(8)
       may be granted only where the claims alleged are so clearly unenforceable as a
       matter of law that no factual development could possibly justify recovery. When
       deciding a motion brought under this section, a court considers only the pleadings.
       [Maiden, 461 Mich at 119-120 (quotation marks and citation omitted).]

With respect to the principles governing a motion for summary disposition brought pursuant to
MCR 2.116(C)(10), our Supreme Court has explained:

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                 A motion under MCR 2.116(C)(10) tests the factual sufficiency of the
         complaint. In evaluating a motion for summary disposition brought under this
         subsection, a trial court considers affidavits, pleadings, depositions, admissions,
         and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most
         favorable to the party opposing the motion. Where the proffered evidence fails to
         establish a genuine issue regarding any material fact, the moving party is entitled
         to judgment as a matter of law. [Maiden, 461 Mich at 120.]

On the other hand,

         [a] motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.
         In evaluating a motion for summary disposition brought under this subsection, a
         trial court considers affidavits, pleadings, depositions, admissions, and other
         evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable
         to the party opposing the motion. Where the proffered evidence fails to establish
         a genuine issue regarding any material fact, the moving party is entitled to
         judgment as a matter of law. [Maiden, 461 Mich at 120.]

We also review questions of statutory interpretation de novo. Dawe v Dr Reuven Bar-Levav &
Assoc, PC, 485 Mich 20, 24; 780 NW2d 272 (2010).

       In general, “an individual has no duty to protect another from the criminal acts of a third
party in the absence of a special relationship between the defendant and the plaintiff or the
defendant and the third party.” Graves v Warner Bros, 253 Mich App 486, 493; 656 NW2d 195
(2002). However, MCL 330.1946 imposes a statutory duty on mental health professionals to
warn or protect third persons from dangerous patients under certain circumstances. MCL
330.1946(1) provides:

                 If a patient communicates to a mental health professional who is treating
         the patient a threat of physical violence against a reasonably identifiable third
         person and the recipient has the apparent intent and ability to carry out that threat
         in the foreseeable future, the mental health professional has a duty to take action
         as prescribed in subsection (2).[2] Except as provided in this section, a mental


2
    Subsection 2 reads:
                A mental health professional has discharged the duty created under
         subsection (1) if the mental health professional, subsequent to the threat, does 1 or
         more of the following in a timely manner:
                 (a) Hospitalizes the patient or initiates proceedings to hospitalize the
         patient under chapter 4 or 4a.
                 (b) Makes a reasonable attempt to communicate the threat to the third
         person and communicates the threat to the local police department or county
         sheriff for the area where the third person resides or for the area where the patient
         resides, or to the state police.


                                                  -3-
       health professional does not have a duty to warn a third person of a threat as
       described in this subsection or to protect the third person.

This statute applies to individual mental health care professionals as well as mental health
institutions. Swan v Wedgwood Christian Youth & Family Servs, Inc, 230 Mich App 190, 201;
583 NW2d 719 (1998). In summary, a mental health professional’s statutory duty to warn third
parties “only arises if three criteria are met: (1) a patient makes a threat of physical violence, (2)
the threat is against a reasonably identifiable third person, and (3) the patient has the apparent
intent and ability to carry out the threat.” Dawe, 485 Mich at 29.

        As to the first criterion—”a patient makes a threat of physical violence”—the assertion
that there was no threat of physical violence is at least somewhat at odds with Haddad’s letter of
October 16, 2015, which states that Alaa was “a danger to himself and others.” Because
summary disposition was granted before any meaningful discovery took place, it is unclear from
the limited record how Haddad reached this conclusion and whether it was based on an actual
communicated threat of violence, or was simply made based on Alaa’s diagnosis of
schizophrenia with “delusional, paranoid, and grandiose” thought process.

        As for the other criteria, it cannot be stressed strongly enough that these motions were
brought in lieu of filing responsive pleadings and before any discovery had taken place. It is
therefore hardly surprising that plaintiff was unable to muster evidence at the hearing showing
that Alaa had made a threat to a reasonably identifiable third person.

        Discovery is the keystone to gathering evidence in civil litigation. It is well settled that
Michigan follows an open, broad discovery policy that permits liberal discovery of any matter,
not privileged, that is relevant to the subject matter involved in the pending case. Domako v
Rowe, 438 Mich 347, 353, 359; 475 NW2d 30 (1991). In addition, our Supreme Court has
repeatedly emphasized that the purpose of discovery is to simplify and clarify issues. Id. at 360.
Thus, the rules should be construed in an effort to facilitate trial preparation and to further the
ends of justice. Id. Moreover, the discovery process should promote the discovery of the facts
and circumstances of a controversy, rather than aid in their concealment. Id.

        Nevertheless, “[a] grant of summary disposition is premature if granted before discovery
on a disputed issue is complete.” Mackey v Dep’t of Corrections, 205 Mich App 330, 333: 517
NW2d 303 (1994). Further, “summary disposition is appropriate if there is no fair chance that
further discovery will result in factual support for the party opposing the motion.” Id. However,
in this case, not only was there no “further” discovery, there was no discovery at all. It is



               (c) If the mental health professional has reason to believe that the third
       person who is threatened is a minor or is incompetent by other than age, takes the
       steps set forth in subdivision (b) and communicates the threat to the department of
       social services in the county where the minor resides and to the third person's
       custodial parent, noncustodial parent, or legal guardian, whoever is appropriate in
       the best interests of the third person. [MCL 330.1946(2).]


                                                 -4-
disingenuous to conclude as a matter of law that “there is no fair chance” that discovery will
result in factual support to oppose the claim when the motion was brought before any discovery
was conducted. Civil procedure does not—and should not—operate in this manner.

        Here, plaintiff presented some independent evidence that there was a dispute. Namely,
plaintiff pointed to Haddad’s report and the notes from a nurse, both of which indicated that Alaa
was a threat to himself and others. Based on that evidence, there is “a fair chance that further
discovery will result in factual support for the party opposing the motion.” See Mackey, 205
Mich App at 333. Consequently, we conclude that plaintiff’s request for discovery is not a mere
fishing expedition based solely on conjecture.

        Furthermore, we do not agree with plaintiff’s assertion that defendants had a common-
law duty to warn or protect Omran from Alaa. The enactment of MCL 330.1946(1) abrogated
any duty of a mental health professional to warn or protect third parties from potential dangers
posed by a patient. “The Legislature may abrogate the common law, but to do so it must speak
in no uncertain terms.” Planet Bingo, LLC v VKGS, LLC, 319 Mich App 308, 320; 900 NW2d
680 (2017) (quotation marks and citation omitted). The Legislature provided in MCL 330.1946
that “[e]xcept as provided in this section, a mental health professional does not have a duty to
warn a third person of a threat as described in this subsection or to protect the third person.”
Therefore, in no uncertain terms, the Legislature abrogated a mental health professional’s duty to
warn or protect a third party except for the specific situation outlined in the statute. Nonetheless,
this was not fatal to plaintiff’s case because plaintiff should have been given the opportunity to
amend his complaint. Leave to amend a complaint should be freely granted “when justice so
requires.” Phillips v Deihm, 213 Mich App 389, 393; 541 NW2d 566 (1995); MCR 2.118(A)(2).
In addition, if a court grants summary disposition under MCR 2.116(C)(8), “the court must give
the parties an opportunity to amend their pleadings pursuant to MCR 2.118, unless the
amendment would be futile.” Weymers v Khera, 454 Mich 639, 658; 563 NW2d 647 (1997); see
also MCR 2.116(I)(5). Accordingly, the deficiencies in plaintiff’s pleadings are not dispositive.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Plaintiff may tax costs.



                                                              /s/ Michael J. Kelly
                                                              /s/ David H. Sawyer
                                                              /s/ Jane E. Markey




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