Anne Gardner v. Michael R Page Md ( 2022 )

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
ANNE GARDNER and ROBERT GARDNER, UNPUBLISHED
June 16, 2022
Plaintiffs-Appellants,
v No. 355966
Ottawa Circuit Court
MICHAEL R. PAGE, M.D., SANJEEV MATHUR, LC No. 19-005743-NH
M.D., LH PARTNERS SUB, doing business as
LAKESHORE HEALTH PARTNERS, and
LAKESHORE HEALTH PARTNERS—FM, LLC,
doing business as LAKESHORE HEALTH
PARTNERS,
Defendants,
and
HOLLAND COMMUNITY HOSPITAL, doing
business as HOLLAND HOSPITAL,
Defendant-Appellee.
Before: BORRELLO, P.J., and JANSEN and MURRAY, JJ.
PER CURIAM.
In this medical malpractice action, plaintiffs, Anne and Richard Gardner, appeal by leave
granted1 following the trial court’s ruling granting Holland Community Hospital’s motion for
partial summary disposition pursuant to MCR 2.116(C)(10). For the reasons set forth in this
opinion, we affirm.
1
Gardner v Page, unpublished order of the Court of Appeals, entered March 31, 2021 (Docket
No. 355966).
-1-
I. BACKGROUND
Plaintiffs initiated this action alleging medical malpractice related to Anne’s treatment at
Holland Hospital by defendant, Dr. Michael Page, when Anne presented to the emergency room
on October 28, 2016. The sole focus of this appeal is whether plaintiffs may seek to hold Holland
Hospital vicariously liable for the allegedly negligent medical treatment provided by Page.2
As relevant to this appeal, plaintiffs alleged in their complaint that “Defendant Page [and]
any of the other physicians, residents, nurses or other health care professionals who participated
in any aspect of the evaluation, consultation and/or care and treatment of Plaintiff Anne Gardner
at Defendant Holland Community Hospital . . . were employees, agents and/or apparent agents of
the Defendant Hospital and acting within the scope of their employment and authority such that
the Defendant hospital would be responsible for any damages or injuries resulting from their
negligence or malpractice.”
Holland Hospital moved for partial summary disposition under MCR 2.116(C)(10),
claiming in relevant part that Page was an independent contractor and was not an employee of
Holland Hospital. Holland Hospital argued that in addition to failing to establish that Page was
the hospital’s actual agent, plaintiffs also could not establish that Page was an apparent or
ostensible agent of the hospital. The hospital submitted Page’s resume, indicating that he was
employed by Emergency Physicians Incorporated. The record also contains a Treatment Consent
form that Anne had signed on October 28, 2016, upon her admission to the emergency department
that stated in relevant part as follows:
I understand that many of the physicians on the staff of Holland Hospital,
including my attending physician(s), may not be employees or agents of Holland
Hospital, but rather, may be independent contractors who have been granted the
privilege of using its facility for the care and treatment of their patients (for
example, radiologists, anesthesiologists, pathologists, emergency physicians). As
such, Holland Hospital exercises no control over the medical decisions regarding
the diagnosis and treatment, nor the personal performance of services by the
physician(s).
Plaintiffs opposed the motion. Anne submitted an affidavit in which she averred that when
she arrived at the emergency department of Holland Hospital, “[a]ll signage in the ER and at the
hospital suggested that I was upon the premises of Holland Hospital and that the facility was staffed
with Holland Hospital employees and agents and that I would be provided with care and staff as
necessary, by the hospital.” Anne further averred that “[n]o one ever suggested that the persons
caring for me were not employed by the hospital,” that Holland Hospital provided Page to treat
plaintiff, that plaintiff “did not have a pre-existing patient-physician relationship with [Page] prior
to this date,” and that she “did not specifically request to be seen by Dr. Page on October 28, 2016.”
2
This interlocutory appeal, which is focused on a narrow issue, does not involve the factual
circumstances pertaining to the other named defendants. Hence, for purposes of this opinion, we
need not discuss those facts and we will tailor our recitation of the relevant facts appropriately to
focus only on the pertinent facts related to Page and Holland Hospital.
-2-
According to Anne, Page “was working in the hospital when he treated me, and I believed that he
was an employee or agent of Holland Hospital, based upon the logistics of the set up - care was
provided in the hospital facility.” She believed that “Holland Hospital, through its conduct and
representations, created the reasonable belief that Dr. Page was its employee or agent.”
The trial court granted summary disposition in favor of Holland Hospital with respect to
its vicarious liability, ruling that there was no genuine question of material fact that Holland
Hospital was not vicariously liable for Page’s alleged malpractice, even under an ostensible agency
theory. The trial court concluded that “Plaintiff’s belief that Dr. Page was an agent or employee
of HCH was not reasonable and HCH did not generate, by act or neglect, any such reasonable
belief.” In reaching this decision, the trial court reasoned that plaintiff “fail[ed] to set forth any
facts to establish that the signage supported one’s reasonable belief that Dr. Page was HCH’s
employee or agent” because plaintiff did not provide any evidence of what the signage actually
said. The court also reasoned that the “language of the consent/payment agreement that plaintiff
signed clearly shows it could not serve as a basis for plaintiff to form a reasonable belief that Dr.
Page was an agent or employee of HCH.” Consequently, the trial court determined that plaintiff
had failed to provide evidence of any act or omission by Holland Hospital that would justify a
reasonable belief that Page was its employee or agent.
This Court granted plaintiff’s application for leave to appeal the decision.
II. STANDARD OF REVIEW
We review a trial court’s ruling on a motion for summary disposition de novo. Hoffner v
Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). Under MCR 2.116(C)(10), summary
disposition is proper if “[e]xcept as to the amount of damages, there is no genuine issue as to any
material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.”
When deciding a motion under MCR 2.116(C)(10), “a trial court must consider all evidence
submitted by the parties in the light most favorable to the party opposing the motion.” El-Khalil
v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). “A genuine issue of
material fact exists when the record leaves open an issue upon which reasonable minds might
differ.” Id. (quotation marks and citation omitted).
III. ANALYSIS
On appeal, plaintiffs argue that the trial court erred in granting summary disposition with
respect to Holland Hospital’s vicarious liability because there were genuine questions of material
fact regarding whether Page was an ostensible agent of Holland Hospital.
“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.” Grewe v Mt Clemens Gen Hosp, 404 Mich 240, 250; 273 NW2d 429 (1978).
“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.” Id. at 250-251. The Grewe Court provided
the following explanation of the ostensible agency theory of vicarious liability:
-3-
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. . . .
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. In this
connection . . . before a recovery can be had against a principal for
the alleged acts of an ostensible agent, three things must be proved,
to wit : (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. [Id. at 252-253 (citations and some quotation marks
omitted).]
Our Supreme Court stated that the “critical question” is whether the plaintiff, at the time
of admission to the hospital, “was looking to the hospital for treatment of [her] physical ailments
or merely viewed the hospital as the situs where [her] physician would treat [her] for [her]
problems.” Id. at 251. In making this determination, a relevant factor involves “whether the
hospital provided” the treating physician to the plaintiff or whether the plaintiff and treating
physician “had a patient-physician relationship independent of the hospital setting.” Id.In Chapa v St Mary’s Hosp of Saginaw, 192 Mich App 29, 33-34; 480 NW2d 590 (1991),
this Court interpreted Grewe and stated:
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.
Simply put, defendant, as putative principal, must have done something that
would create in [plaintiff’s] mind the reasonable belief that [the treating physicians]
were acting on behalf of defendant. [Citations omitted.]
Summarizing these principles, this Court stated in VanStelle v Macaskill, 255 Mich App 1,
11; 662 NW2d 41 (2003):
-4-
Depending on the circumstances, in some cases, the most critical question
is whether the patient “looked to” the hospital for treatment. Agency “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.” Further, the fact that a doctor used
a hospital’s facilities to treat a patient is not sufficient to give the patient a
reasonable belief that the doctor was an agent of the hospital. [Citations omitted.]
In this case, plaintiff signed a Treatment Consent form that stated:
I understand that many of the physicians on the staff of Holland Hospital,
including my attending physician(s), may not be employees or agents of Holland
Hospital, but rather, may be independent contractors who have been granted the
privilege of using its facility for the care and treatment of their patients (for
example, radiologists, anesthesiologists, pathologists, emergency physicians). As
such, Holland Hospital exercises no control over the medical decisions regarding
the diagnosis and treatment, nor the personal performance of services by the
physician(s). [Emphasis added.]
Although Anne averred in her affidavit that when she arrived at the emergency department
of Holland Hospital, “[a]ll signage in the ER and at the hospital suggested that I was upon the
premises of Holland Hospital and that the facility was staffed with Holland Hospital employees
and agents and that I would be provided with care and staff as necessary, by the hospital,” she did
not mention any specific sign or the specific language of any sign that she saw. She only averred
as to her belief but without including any evidence of any specific fact on which that belief was
based. Mere conclusory assertions in an affidavit, without any accompanying statements of
underlying factual support, are insufficient to create a genuine issue of material fact on summary
disposition. Kozak v City of Lincoln Park, 499 Mich 465, 468; 885 NW2d 443 (2016).
Accordingly, on this record, there is only evidence that Anne was informed that emergency
physicians at Holland Hospital may not be hospital employees and may instead be independent
contractors whose medical decisions were not subject to the hospital’s control. Even viewing this
evidence in the light most favorable to plaintiffs as we must, there is no evidence to support a
conclusion that Anne could have held a reasonable belief that Page was Holland Hospital’s agent
or that any such belief was generated by some act or neglect attributable to Holland Hospital, and
plaintiffs have therefore failed to demonstrate that the trial court erred by determining as a matter
of law that Page was not Holland Hospital’s ostensible agent and granting summary disposition in
favor of the hospital. Grewe, 404 Mich at 252-253; Chapa, 192 Mich App at 33-34.
Affirmed. No costs are awarded. MCR 7.219(A).
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Christopher M. Murray
-5-