Opinion
SC 165887 COA 359890
03-29-2024
KATHY PLACIDO, Plaintiff-Appellee, v. ABDELKADER HAWASLI, M.D., HAWASLI AND ASSOCIATES SURGICAL SPECIALISTS, PC, d/b/a EASTSIDE SURGICAL ASSOCIATES, and ASCENSION ST. JOHN HOSPITAL, d/b/a ST. JOHN HOSPITAL AND MEDICAL CENTER, Defendants, and ASCENSION MEDICAL GROUP MICHIGAN, d/b/a ASCENSION MEDICAL GROUP, Defendant-Appellant.
Wayne CC: 20-003376-NH
Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
Elizabeth T. Clement, Chief Justice
On order of the Court, the application for leave to appeal the June 1, 2023 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should now be reviewed by this Court.
VIVIANO, J. (dissenting).
I disagree with the Court's decision not to intervene in this case. Plaintiff asserted an assortment of claims against defendants, alleging that they are liable for injuries she suffered as a result of a surgical procedure. The complaint alleges that, while plaintiff provided consent to perform surgery on her parathyroid glands, she expressly withheld consent to remove her thyroid under any circumstances. But Dr. Hawasli removed her thyroid, which plaintiff alleges caused her injury. The complaint states direct claims against all three defendants and vicarious-liability claims against St. John and AMG.
The defendants are Abdelkader Hawasli, M.D., Hawasli and Associates Surgical Specialists, P.C., Ascension St. John Hospital (St. John), and Ascension Medical Group (AMG).
After the close of discovery, AMG and St. John filed three motions for summary disposition. The trial court denied the motions without oral argument or a written opinion by checking a box on form orders. The Court of Appeals, in an unpublished, split decision, affirmed in part, reversed in part, and remanded for further proceedings. Relevant to this appeal, the Court of Appeals affirmed the denial of AMG's motion for summary disposition of plaintiff's vicarious-liability claim because it concluded that a professional-services agreement (PSA) created a question of fact regarding whether Dr. Hawasli was an actual agent of AMG. I believe this ruling is incorrect and should be reversed.
The trial judge did add a handwritten explanation on one of the forms that "Dr Hawasli was an employee of St. John by contract." However, St. John was not a party to the contract at issue. In short, it does not appear that the trial judge gave the motions any real consideration.
Placido v Hawasli, unpublished per curiam opinion of the Court of Appeals, issued June 1, 2023 (Docket No. 359890). The Court of Appeals reversed the trial court's ruling denying summary disposition of plaintiff's vicarious-liability claim against St. John. Id. at 3. It also concluded that plaintiff's direct claims against St. John and AMG were abandoned and that her gross-negligence claims should be dismissed. Id. at 5 n 6, 7 n 11. Plaintiff has not appealed those rulings.
"[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 Mount Clemens Gen Hosp, 404 Mich. 240, 250 (1978). An independent contractor is "one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work." Utley v Taylor &Gaskin, Inc, 305 Mich. 561, 570 (1943) (quotation marks and citations omitted).
Plaintiff argues that AMG is vicariously liable for Dr. Hawasli's actions based upon the terms of the PSA between AMG's predecessor and Dr. Hawasli's professional corporation. After analyzing the PSA, the Court of Appeals held that "the trial court correctly denied summary disposition as to AMG because the terms of the PSA create a question of fact for the jury as to agency." Placido v Hawasli, unpublished per curiam opinion of the Court of Appeals, issued June 1, 2023 (Docket No. 359890), p 3; see also id. at 4 ("We conclude the terms of the PSA between AMG and Dr. Hawasli's P.C., create a question of fact for the jury as to agency."). But before addressing the PSA's terms, it is important to note that the Court of Appeals ruling is perplexing because the court did not first find that any provisions of the PSA were ambiguous. Therefore, the meaning of the PSA is a question of law. See Port Huron Ed Ass'n v Port Huron Area Sch Dist, 452 Mich. 309, 323 (1996) ("If the contract language is clear and unambiguous, its meaning is a question of law. Where the contract language is unclear or susceptible to multiple meanings, interpretation becomes a question of fact.") (citation omitted). Inviting the jury to determine the meaning of a clear and unambiguous contract is contrary to the law of this state.
As in any case, it is possible, of course, that the parties operated in a manner inconsistent with the terms of their written agreement, which could give rise to additional factual and legal arguments concerning agency. But in this case, it appears that plaintiff's vicarious-liability claims are based only on the PSA and not on any other record evidence.
Turning briefly to the terms of the parties' agreement, I agree with the Court of Appeals partial dissent that the majority misread the PSA and that the unambiguous terms of the PSA explicitly provide that Dr. Hawasli was an independent contractor. I will not review all of the provisions the partial dissent relied upon here, but a few of them bear mentioning. The PSA clearly provided that "[n]othing in this Agreement is intended to allow [AMG] to exercise control or direction over the manner or method by which [Dr. Hawasli] perform[s] the Services which are the subject of this Agreement." And it further provided that "[i]n performing Services pursuant to this Agreement PC and Physician are at all times acting as independent contractors" and that "[n]othing in this Agreement is intended to create an employer/employee relationship . . . between said parties and [AMG]." Rather than apply the PSA's operative language, the Court of Appeals majority mischaracterized these substantive provisions as a "label" or "disclaimer." Placido, unpub op at 3 &n 5, citing Laster v Henry Ford Health Sys, 316 Mich.App. 726, 735 (2016). But the PSA did not merely assign the "label" of independent contractor to Hawasli; it contained substantive provisions that limited the scope of AMG's control over Dr. Hawasli such that Dr. Hawasli was an independent contractor.
In reaching its conclusion, the Court of Appeals majority relied upon certain provisions in the PSA that relate to quality assurance. However, we have held that these types of provisions are insufficient to establish agency. See Utley, 305 Mich. at 570 (holding that "the right to inspect and to reject materials" is insufficient, as a matter of law, to establish agency because it speaks only to "the result of the work"). The Court of Appeals reached the same conclusion in Laster. See Laster, 316 Mich.App. at 738. This conclusion (i.e., that these provisions do not establish agency) is logically sound; otherwise, since these provisions are required by state law, relying on them to establish agency opens the door for any physician with privileges to treat patients at a hospital in our state to be considered an actual agent of the hospital rather than an independent contractor. And, even if such provisions could have a bearing on the agency issue, the qualityassurance provision at issue in this case (§ 2.7 of the PSA) specifically applies to services provided at AMG's clinic, not to services (like the surgery at issue in this case) that occurred at a hospital.
See, e.g., MCL 331.206 (requiring hospitals to "adopt rules, regulations and policies governing the professional work of the hospital and the eligibility and qualifications of its medical staff"); MCL 333.21513(d) (requiring hospitals to "ensure that physicians and dentists admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital," and the review "must include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital").
Finally, the Court of Appeals majority misleadingly asserted that" '[a]gency is always a question of fact for the jury.'" Placido, unpub op at 4, quoting Grewe, 404 Mich. at 253. But, as both the majority opinion and partial dissent recognized, agency only becomes a question of fact "[w]here there is a disputed question of agency, [and there is] any testimony, either direct or inferential, tending to establish agency ...." Meretta v Peach, 195 Mich.App. 695, 697 (1992); Placido, unpub op at 3-4, citing Meretta, 195 Mich.App. at 697; Placido (LETICA, J., concurring in part and dissenting in part), unpub op at 12 n 4, citing St Clair Intermediate Sch Dist v Intermediate Ed Ass'n, 458 Mich. 540, 556 (1988). See also Hunt v Stromberg Motor Devices Co, 215 Mich. 483, 491 (1921) ("Agency is essentially a question of fact for the jury when there is any testimony direct or inferential tending to establish it."). As noted above, the only material evidence proffered by plaintiff and relied upon by the lower courts in finding a question of fact on the agency issue was the PSA. Because the provisions of the PSA unambiguously establish that Dr. Hawasli was an independent contractor, I would reverse the Court of Appeals holding on this issue and remand to the trial court for entry of an order granting AMG's motion for summary disposition of plaintiff's vicarious-liability claim.
Because this ruling would dispose of the last remaining claim against AMG, I would vacate as moot the portion of the Court of Appeals majority opinion affirming the trial court's order denying the motion for summary disposition of plaintiff's ordinarynegligence claims. The Court of Appeals ruled that plaintiff's claim that she did not give Dr. Hawasli permission to remove her thyroid sounded in ordinary negligence and not medical malpractice. But it is worth noting that there are reasons to question the soundness of this conclusion as well. The Court of Appeals majority did not cite any cases supporting the proposition that a claim that a medical procedure exceeded the scope of the patient's consent sounds in ordinary negligence. Instead, such a claim would appear to be one for the intentional tort of battery. See Franklyn v Peabody, 249 Mich. 363, 366 (1930) ("Accepting plaintiff's claim as true, [the surgeon], in operating upon her thigh without her consent, committed a trespass to her person for which he would be liable to respond in damages in an action for assault and battery. Authority to this effect is ample.") (citation omitted); Zoski v Gaines, 271 Mich. 1, 9 (1935) ("It seems to be reasonably established that a physician is liable for operating upon a patient unless he obtains the consent of such patient, if competent, and, if not, of someone who, under the circumstances, would be legally authorized to give the requisite consent.") (quotation marks and citations omitted).Of course, as the Court of Appeals majority noted, while plaintiff's brief refers to the removal of her thyroid as a battery, her complaint does not expressly allege a claim of battery, and plaintiff may need to seek an amendment of the complaint to pursue such a claim. See Placido, unpub op at 7 n 11. Because these issues can be addressed on remand, if necessary, I would vacate as moot Part II(B) of the Court of Appeals opinion and remand this case for further proceedings.
As noted above, the direct-liability claims against AMG and St. John and the vicarious-liability claim against St. John are no longer at issue. If the vicarious-liability claim against AMG were also to be dismissed, then any liability that Dr. Hawasli might have incurred personally is irrelevant to whether AMG is liable. And Dr. Hawasli did not file any motion that is now on appeal, nor did he join the appeal. Thus, there is no need or basis to now address plaintiff's claims against Dr. Hawasli and his professional corporation, which would be the only claims that remain in the case.
Apparently, with the exception of one case involving an interoperative emergency-a circumstance the panel did not believe was raised in this case-the panel only reviewed cases distinguishable from the present case because they involved "the question of informed consent, i.e., whether the physician properly provided the necessary information for a patient to understand what they were consenting to." Placido, unpub op at 5; see also id. at 5 n 8.
See also Bohn v Ann Arbor Reproductive Med Assoc, PC, unpublished per curiam opinion of the Court of Appeals, issued December 17, 1999 (Docket No. 213550), p 6 (citing Franklyn for the rule that "[a] battery may be committed if a doctor performs a procedure that exceeds the scope of the patient's consent"); Banks v Wittenberg, 82 Mich.App. 274, 279-280 (1978) (citing Franklyn and holding that "[i]f a physician treats or operates on a patient without consent, he has committed an assault and battery and may be required to respond in damages. Likewise, if consent has been given but the scope of the consent is exceeded, there has been an assault and battery"); Shulman v Lerner, 2 Mich.App. 705, 707708 (1966) (citing Franklyn and clarifying that "[t]his is not a case of claimed malpractice, the surgical procedure not being questioned, but rather that the consent of the patient was not obtained; i.e., an unwarranted 'touching' constituting assault and battery").
For the above reasons, I respectfully dissent from the majority's decision to deny leave.
WELCH, J., joins the statement of VIVIANO