Mary Anne Markel v. William Beaumont Hospital ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MARY ANNE MARKEL, UNPUBLISHED
April 22, 2021
Plaintiff-Appellant,
v No. 350655
Oakland Circuit Court
WILLIAM BEAUMONT HOSPITAL, LC No. 2018-164979-NH
Defendant-Appellee,
and
HOSPITAL CONSULTANTS, PC, LINET
LONAPPAN, M.D., and IOANA MORARIU,
Defendants.
Before: BECKERING, P.J., and FORT HOOD and RIORDAN, JJ.
BECKERING, P.J. (concurring).
I concur in the result. I write separately to address the issue of ostensible agency. Were
this Court not bound by the Michigan Supreme Court’s order in Reeves v Midmichigan Health,
489 Mich 908; 769 NW2d 468 (Mem) (2011), I would conclude that the Supreme Court’s detailed
analysis of ostensible agency and its ruling in Grewe v Mt Clemens Hosp, 404 Mich 240; 273
NW2d 429 (1978), supports a reversal of the trial court’s ruling in the present case. But for Reeves,
I would hold that plaintiff, Mary Anne Markel, has established a question of fact for the jury with
respect to whether defendant Linet Lonappan, M.D. was an ostensible agent of defendant William
Beaumont Hospital under the circumstances presented.
In the wake of Grewe, our Court’s rulings have lacked consistency with respect to
ostensible agency, and some have added a greater obligation upon a plaintiff than the Supreme
Court arguably intended in Grewe. In Grewe, after receiving an electric shock that caused him to
suffer a dislocated shoulder, the plaintiff went to the defendant hospital, where he was admitted
after being seen in the emergency room. Id. at 245-246, 255. After his admission, the plaintiff
was treated by Dr. Gerald Hoffman, an internist. Dr. Hoffman’s associate, Dr. Lewis Katzowitz,
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an internist with staff privileges at the defendant hospital, also treated the plaintiff. Dr. Katzowitz
unsuccessfully attempted to reduce the plaintiff’s shoulder dislocation with efforts including
placing his foot on the plaintiff’s chest and pulling his arm, without first having viewed x-rays. Id.
at 246. The plaintiff sued for medical negligence, contending that these attempts at reducing his
shoulder dislocation resulted in a brachial plexus injury and a fracture of the greater tuberosity.
Id. The matter eventually went to a second jury trial in which the jury found the defendant hospital
negligent and awarded the plaintiff $120,000 in damages. Id. at 247. The defendant hospital
argued that it could not be held liable for Dr. Katzowitz’s negligence because Dr. Katzowitz was
not its employee; he merely had staff privileges, and the hospital asserted that it had no control
over his treatment of the plaintiff. Id. at 247, 250. The Supreme Court disagreed, concluding that
a hospital could be held liable for the negligence of a doctor who was an independent contractor
under certain conditions:
Generally speaking, a hospital is not vicariously liable for the negligence of a
physician who is an independent contractor and merely uses the hospital’s facilities
to render treatment to his patients. See Anno: Hospital-Liability-Neglect of Doctor,
69 ALR2d 305, 315-316. However, if the individual looked to the hospital to
provide him with medical treatment and there has been a representation by the
hospital that medical treatment would be afforded by physicians working therein,
an agency by estoppel can be found. See Howard v Park, 37 Mich App 496; 195
NW2d 39 (1972), lv den 387 Mich 782 (1972). See also Schagrin v Wilmington
Medical Center, Inc, 304 A2d 61 (Del Super Ct, 1973).
In our view, the critical question is whether the plaintiff, at the time of his admission
to the hospital, was looking to the hospital for treatment of his physical ailments or
merely viewed the hospital as the situs where his physician would treat him for his
problems. A relevant factor in this determination involves resolution of the
question of whether the hospital provided the plaintiff with Dr. Katzowitz or
whether the plaintiff and Dr. Katzowitz had a patient-physician relationship
independent of the hospital setting. [Id. at 250-251.]
The Supreme Court further stated:
The relationship between a given physician and a hospital may well be that of an
independent contractor performing services for, but not subject to, the direct control
of the hospital. However, that is not of critical importance to the patient who is the
ultimate victim of that physician’s malpractice. In Howard v Park, supra, the Court
of Appeals quoted with approval from the opinion in Stanhope v Los Angeles
College of Chiropractic, 54 Cal App 2d 141; 128 P2d 705 (1942). We too find the
California Court’s analysis of this area enlightening:
“ ‘An agency is ostensible when the principal intentionally or by
want of ordinary care, causes a third person to believe another to be
his agent who is not really employed by him.’ § 2300, Civ Code.
In this connection it is urged by appellant that ‘before a recovery
can be had against a principal for the alleged acts of an ostensible
agent, three things must be proved, to wit:’ (quoting from Hill v
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Citizens National Tr & Sav Bank, 9 Cal 2d 172, 176; 69 P2d 853,
855 (1937)); (First) The person dealing with the agent must do so
with belief in the agent’s authority and this belief must be a
reasonable one; (second) such belief must be generated by some act
or neglect of the principal sought to be charged; [third] and the third
person relying on the agent’s apparent authority must not be guilty
of negligence. 1 Cal Jur 739; Weintraub v. Weingart, 98 Cal App
690; 277 P 752 [1929].’ ” [Id. at 252-253.1]
The Supreme Court concluded that there was nothing in the record that should have put the
plaintiff on notice that Dr. Katzowitz was an independent contractor, as opposed to an employee,
of the defendant hospital. Id. at 253. It explained that the plaintiff’s testimony demonstrated he
went to the defendant hospital for treatment and expected to be treated by the hospital. There was
no evidence that he had any preexisting patient-physician relationship with any doctor who treated
him. Id. at 253-254. It also explained that the plaintiff was treated by Dr. Hoffman and Dr.
Katzowitz because the emergency room doctor had referred him to Dr. Hoffman. Id. at 254-255.
The Supreme Court concluded that it was “abundantly clear on the strength of this record that the
plaintiff looked to the defendant hospital for his treatment and was treated by medical personnel
who were ostensible agents of defendant hospital.” Id. at 255.
One of the leading cases on ostensible agency from this Court is Chapa v St Mary’s Hosp,
192 Mich App 29; 480 NW2d 590 (1991). In Chapa, after the plaintiff took a fall and was rendered
unconscious, he was admitted to the defendant hospital through its emergency room. He was
treated by the on-call neurologist. Id. at 30-31. The next day, the plaintiff’s daughter called Dr.
Thepveera, the plaintiff’s long-time family doctor, who then took over his treatment. Id. at 31.
The plaintiff alleged that Dr. Thepveera and Dr. Penput, who treated the plaintiff at Dr.
Thepveera’s request when he was out of town, were negligent. Id. At issue was whether Dr.
Thepveera and Dr. Penput were ostensible agents of the defendant hospital. Id. The plaintiff
argued that, based on Grewe and what the Supreme Court stated was the “critical test,” the relevant
inquiry was whether the plaintiff looked to the defendant hospital for treatment at the time of his
admission. Id. at 32. This Court rejected the plaintiff’s framing of the test. Id. It explained:
It is obvious that Grewe so framed the “critical question” because of the facts of
that case, which differ substantially from those herein. In Grewe, the plaintiff, who
suffered a dislocated shoulder at work, was admitted on an emergency basis and
immediately was (mis)treated by two hospital physicians, apparently on call, with
whom he had no prior doctor-patient relationship. It was that treatment that gave
rise to the cause of action for malpractice. In this case, [the plaintiff] was treated
by a hospital doctor the day he was admitted. There was a question of fact whether
[the plaintiff’s] family instigated the replacement of defendant’s personnel with the
1
In Stanhope, the court concluded that the “appellant did nothing to put respondent on notice that
the X-ray laboratory was not an integral part of appellant institution, and it cannot seriously be
contended that respondent, when he was being carried from room to room suffering excruciating
pain, should have inquired whether the individual doctors who examined him are employees of
the college or were independent contractors.” Stanhope, 54 Cal App 2d at 146.
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family doctor, but it was clear that the family doctor did take over on the day after
[the plaintiff’s] admission. And it is undisputed that the acts of alleged malpractice
began five days after admission. . . .
The essence of Grewe is that a hospital may be vicariously liable for the
malpractice of actual or apparent agents. Nothing in Grewe indicates that a hospital
is liable for the malpractice of independent contractors merely because the patient
“looked to” the hospital at the time of admission or even was treated briefly by an
actual nonnegligent agent of the hospital. Such a holding would not only be
illogical, but also would not comport with fundamental agency principles noted in
Grewe and subsequent cases. Those principles have been distilled into the
following three elements that are necessary to establish the creation of an ostensible
agency: (1) the person dealing with the agent must do so with belief in the agent’s
authority and this belief must be a reasonable one, (2) the belief must be generated
by some act or neglect on the part of the principal sought to be charged, and (3) the
person relying on the agent’s authority must not be guilty of negligence. Grewe,
supra, pp 252-253; Strach v St John Hosp Corp, 160 Mich App 251, 261; 408
NW2d 441 (1987).
Simply put, defendant, as putative principal, must have done something that would
create in [the plaintiff’s] mind the reasonable belief that Drs. Thepveera and Penput
were acting on behalf of defendant. Grewe, supra . . . . If, as defendant contended
below, [the plaintiff’s] family arranged for Dr. Thepveera to replace Dr. Schanz,
then the question becomes whether it was reasonable for [the plaintiff] to continue
to believe that he was being treated by agents of defendant hospital. The
reasonableness of the patient’s belief in light of the representations and actions of
the hospital is the “key test” embodied in Grewe. [Id. at 32-34.]
In the present case, William Beaumont Hospital argues that Markel cannot show she had a
reasonable belief that defendant Dr. Lonappan was acting on behalf of William Beaumont
Hospital, and she cannot show that any such belief was generated by it. It relies on the rule that
“[a]gency does not arise merely because one goes to a hospital for medical care. There must be
some action or representation by the principal (hospital) to lead the third person (plaintiff) to
reasonably believe an agency in fact existed.” VanStelle v Macaskill, 255 Mich App 1, 11; 662
NW2d 41 (2003) (citation and internal quotation marks omitted).
I would submit that, on the basis of Grewe, there is a genuine issue of material fact whether
Markel had a reasonable belief that Dr. Lonappan was acting on behalf of William Beaumont
Hospital when Markel went to William Beaumont Hospital seeking treatment, William Beaumont
Hospital assigned Dr. Lonappan to treat Markel, and Dr. Lonappan assumed Markel’s in-hospital
care. William Beaumont Hospital has produced no document showing that Markel was advised
that Dr. Lonappan was not, in fact, its agent.2 According to Grewe, the critical question is whether
2
Evidence indicated that Dr. Lonappan wore a lab coat with the William Beaumont Hospital
insignia, as well as that of Hospital Consultants, P.C., but Dr. Lonappan also testified that she did
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Markel, at the time of her presentation to the hospital, was looking to William Beaumont Hospital
for treatment of her physical ailments or merely viewed the hospital as the situs where her
physician would treat her for her problems, Grewe, 404 Mich at 251. In this case, Markel attested
to the fact that she was looking to the hospital for her care; she was not viewing it as the situs
where her physician would treat her for her problems. And line with Chapa, Markel’s affidavit
makes clear that her expectations did not change while at the hospital; in other words, she made
no arrangements to obtain care from her own doctor at any point during her stay. Contrary to the
conclusion of my colleagues, I do not deem Markel’s statements in her affidavit to contradict her
deposition testimony. Simply because she testified at her deposition that she did not remember
meeting Dr. Lonappan does not mean should could not have had the reasonable expectation that
all medical care providers who were assigned to and attended to her while she was at William
Beaumont Hospital were agents of the hospital.3 Moreover, she did not know Dr. Lonappan prior
to her admission to the hospital.
The evidence establishes that Markel went to the William Beaumont Hospital’s emergency
department because she was experiencing numbness in her feet, back pain, and an inability to
urinate a week after an endometrial ablation. Following the results of a blood test, she was
admitted to the hospital for additional testing and observation. The hospital provided her with a
neurological consult. She was observed by a physician’s assistant. She was transferred from the
observation unit and admitted to the hospital. The hospital assigned Dr. Lonappan, a board-
certified internist and hospitalist,4 to Markel’s care. Dr. Lonappan completed a history and
performed a physical examination. Dr. Lonappan agreed at her deposition that she was responsible
for knowing which studies had been previously ordered for Markel with results pending, she was
the doctor responsible for having discharged Markel, and she was the doctor responsible for
following up regarding the results of the tests. Importantly, a urine culture showed that Markel
was positive for Group B Streptococcus, and Dr. Lonappan did not follow up with Markel.
Although Markel did not remember Dr. Lonappan, she did not choose Dr. Lonappan as her doctor.
Markel went to the hospital for care and treatment, and the hospital assigned Dr. Lonappan to her
care.5 These facts do not suggest that Markel merely viewed William Beaumont Hospital as the
situs where her physician would treat her problems. Id. When the benefit of reasonable doubt is
not tell patients she was serving as an independent contractor while treating her assigned hospital
patients. In any event, Markel does not recall meeting Dr. Lonappan because she was in so much
pain.
3
Neither she nor anyone in her family made arrangements with her doctor to meet Dr. Lonappan
or any other doctor at the hospital.
4
In Grewe, the Supreme Court agreed with a New York court’s rationale that hospitals should
shoulder the responsibilities of respondeat superior, just like every other employer, “where medical
personnel such as physicians and nurses, though independent contractors, were performing
medical services ordinarily performed by the hospital.” Id. at 252.
5
While Dr. Lonappan testified that William Beaumont Hospital assigned her to Markel’s hospital
care based on a contractual arrangement between her professional corporation and Markel’s
primary physician for when one of his patients presented to the hospital, there is no dispute that
this was not made known to Markel.
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given to plaintiff, I would conclude based on Grewe that reasonable minds could differ as to
whether Dr. Lonappan was an ostensible agent of William Beaumont Hospital. West v Gen Motors
Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). See Setterington v Pontiac Hosp, 223 Mich
App 594, 603; 568 NW2d 93 (1997) (stating that the evidence supported the jury’s finding of an
agency between the radiologists and the defendant hospital when there was no patient-physician
relationship between the plaintiff and the radiologists outside the hospital setting, the radiologists
just happened to be on duty when the plaintiff arrived at the defendant hospital, and the defendant
hospital held the radiology department out as part of the hospital); Johnson v Kolachalam,
unpublished per curiam opinion of the Court of Appeals, issued July 21, 2016 (Docket No.
326615), pp 12-13 (stating that given the plaintiff’s pain and distress when she arrived at the
hospital, she did not unreasonably fail to ask whether the individual doctor who performed her
gallbladder surgery was an employee of the hospital or an independent contractor, and she
reasonably could have believed that the surgeon was an employee of the hospital); Crawford v
William Beaumont Hosp, unpublished per curiam opinion of the Court of Appeals, issued October
2, 2012 (Docket No. 298914), pp 7-8 (stating that there were questions of fact whether an
ostensible agency existed when the plaintiff went to the emergency room, he was placed under the
care of one of the doctors after his diagnosis of atrial fibrillation, and no one broached the topic of
the doctors’ status as independent contractors with the defendant hospital with the plaintiff).
This Court’s decision in Chapa does not change my conclusion that there is a genuine issue
of material fact whether Dr. Lonappan was an ostensible agent of William Beaumont Hospital.
The Supreme Court in Grewe, 404 Mich at 251, stated that the “critical question” was whether the
plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of
his physical ailments. This Court in Chapa, 192 Mich App at 32, 34, stated that the Supreme Court
framed the “critical question” in this manner because of the facts before the Supreme Court, which
were substantially different from the facts before it, and this Court then reframed the critical
question for those substantially different facts. But the facts in the present case are not substantially
different from those in Grewe—in both cases, the plaintiff went to the hospital seeking emergency
care and, while at the hospital, received care by a physician with whom there was no preexisting
patient-physician relationship. Accordingly, there is no need to reframe the critical question for
the present case. Additionally, although the Supreme Court in Grewe, 404 Mich at 252, referenced
the three factors for ostensible agency, it did not engage in an analysis of each of those factors
before determining that the jury’s verdict was supported by the evidence. See id. at 253-255.
Based on Grewe, I would conclude that the trial court erred in granting William Beaumont
Hospital’s motion for summary disposition with respect to the ostensible agency of Dr. Lonappan.
But, as I mentioned at the outset, I am bound by the Supreme Court’s order in Reeves.6 In
Reeves, the Supreme Court reversed this Court’s conclusion that a question of fact existed with
respect to ostensible agency for reasons set forth in the Court of Appeals’ dissenting opinion.
Reeves, 489 Mich at 908. The dissenting opinion noted that the “[n]either the admission consent
form nor the discharge instructions discuss the relationship between defendant and the physicians
providing treatment in its emergency room,” the doctor who had been assigned to the patient’s7
6
I believe other Court of Appeals opinions are factually distinguishable.
7
The patient was plaintiff’s husband. He suffered a catastrophic stroke and remained in a
“vegetative state” after being discharged from the emergency room at Gratiot Medical Center
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case . . . . “never discussed his employment status with [the patient], . . . and there is no evidence
in the record that defendant did or failed to do anything that would create a reasonable belief that
[the doctor] was acting on its behalf.” Reeves v Midmichigan Health, unpublished per curiam
opinion of the Court of Appeals, issued September 30, 2010 (Docket No. 291855), p 5 (HOEKSTRA,
J., dissenting). In other words, silence on the part of the hospital and reasonable assumptions on
the part of the plaintiff do not provide the plaintiff with a reasonable question of fact when it comes
to ostensible agency, the hospital has to do or fail to do something more than that to create a
reasonable belief.8 Because Markel has failed to produce evidence that William Beaumont
Hospital did or failed to do anything that would create a reasonable belief that Dr. Lonappan was
acting on its behalf, I must concur that summary disposition was proper here.
I implore our Supreme Court to revisit and clarify the proper legal framework for ostensible
agency. Too many patients select and seek care from a hospital based on its highly branded,
“premier” reputation, and they rightly expect that they will be in the good hands of the hospital’s
carefully curated, premier medical employees, only to learn later that they merely entered a brick
building filled with independent contractors.9 And when a mistake is made, they learn that the
hospital bears no legal responsibility for care that fails to meet expectations, let alone the bare
minimum standard of care.
/s/ Jane M. Beckering
where the defendant doctor had treated him. Reeves v Midmichigan Health, unpublished per
curiam opinion of the Court of Appeals, issued September 30, 2010 (Docket No. 291855), p 1.
8
Under this framing of the Grewe test, not even the plaintiff in Grewe would pass the test.
9
If a hospital chooses to make clear through consent forms that doctors are independent
contractors, those forms should be sufficiently clear so that no innocent assumptions remain.
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