Opinion
361018
07-27-2023
BARBARA STEMPNIAK and THOMAS STEMPNIAK, Plaintiffs-Appellees, v. PRIME HEALTHCARE SERVICES - GARDEN CITY, LLC, Defendant-Appellant, and MOUNTAIN WEST SURGICAL ASSOCIATES, PLLC, CHRISTINE M CUCCHI, D.O., PLLC, DR. ROBERT C. GROSS, and DR. KATHERINE HOMER, Defendants.
UNPUBLISHED
Wayne Circuit Court LC No. 20-011518-NH
Before: PATEL, P.J., and BOONSTRA and RICK, JJ.
PER CURIAM
In this medical malpractice action, defendant Primehealth Services-Garden City, LLC (Garden City Hospital) appeals by leave granted an order denying its motion for summary disposition. Because there is a genuine issue of material fact whether defendant Robert C. Gross was an ostensible agent of Garden City Hospital, we affirm the trial court's denial of the hospital's motion for summary disposition.
Stempniak v Primehealth Services-Garden City, LLC, unpublished order of the Court of Appeals, entered August 18, 2022 (Docket No. 361018).
I. BACKGROUND
On March 16, 2018, plaintiff, Barbara Stempniak, presented to the emergency department of Garden City Hospital with complaints of severe abdominal pain. The emergency department staff diagnosed Stempniak with cholecystitis (inflammation of the gallbladder) and admitted her to the hospital. The next day, a resident in the emergency department requested Dr. Gross, a general surgeon, to perform a surgical consultation. It is undisputed that Stempniak did not have a prior professional relationship with Dr. Gross. On March 18, 2018, Dr. Gross and Dr. Katherine Homer, a Garden City Hospital resident, removed Stempniak's gallbladder laparoscopically. Stempniak's common bile duct was cut open during the surgery. As a result, Stempniak developed an infection and was transferred to another hospital where she underwent two surgeries to repair the damage to her bile duct. Following a multi-week hospital stay, Stempniak received long-term care in a rehabilitation facility.
Barbara's husband, Thomas Stempniak, has a claim for loss of consortium. References to "Stempniak" in this opinion refers to only Barbara Stempniak.
Stempniak and her husband filed this medical malpractice action alleging that Dr. Gross negligently cut Stempniak's bile duct during the surgery. Stempniak further alleged that Garden City Hospital was vicariously liable for Dr. Gross's negligence because he was the actual, apparent, and/or ostensible employee of Garden City Hospital. Stempniak testified that she recalled having tests in the emergency room that revealed she needed gallbladder surgery. Because she was in extensive pain before her surgery, she did not recall any of the treating physicians or any conversations with treatment providers or administrators at Garden City Hospital. She vaguely recalled meeting Dr. Homer, but was unsure what role Homer had in her treatment. Although she recalled signing a consent form to perform the surgery, she did not recall any conversations preceding signing it and she was not sure that she understood all the provisions of the consent form because of her high level of pain at the time.
Following discovery, Garden City Hospital moved for summary disposition pursuant to MCR 2.116(C)(8) and (10) arguing that it could not be held vicariously liable because Dr. Gross was an independent contractor and that it had no agency relationship, either actual or ostensible, with Dr. Gross. Garden City Hospital asserted that Stempniak signed a form entitled "General Consent for Treatment" in which she acknowledged, in pertinent part:
Some doctors and staff are not employees of Garden City Hospital. I know that Garden City Hospital is not responsible for their actions. I also know I may receive separate bills from them even though they provide services to me at Garden City Hospital. I will work with their offices to answer questions about my insurance.
In response, Stempniak argued that she presented to the emergency department of Garden City Hospital looking to its agents and employees to treat her severe right upper quadrant abdominal pain. Despite her lack of recall due to her severe pain, Stempniak maintained that she continued to look to Garden City Hospital its agents and employees to treat her physical ailments and the laparoscopic cholecystectomy was part of that treatment. The trial court denied the motion for summary disposition. This appeal followed.
II. ANALYSIS
Garden City Hospital argues that the trial court erred by denying its motion for summary disposition because there is no genuine issue of material fact that it did not have an agency relationship with Dr. Gross. We disagree.
"We review de novo a trial court's decision on a motion for summary disposition." El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019).
The principle of vicarious liability, or respondeat superior, is that" 'a master is responsible for the wrongful acts of his servant committed while performing some duty within the scope of his employment.'" Rogers v JB Hunt Transport, Inc, 466 Mich. 645, 651; 649 N.W.2d 23 (2002), quoting Murphy v Kuhartz, 244 Mich. 54, 56; 221 N.W. 143 (1928). Generally, a hospital cannot be held vicariously liable for the negligence of an independent contractor physician. Grewe v Mt Clemens Gen Hosp, 404 Mich. 240, 250; 273 N.W.2d 429 (1978). But a hospital may be held vicariously liable under the theory of ostensible agency if a plaintiff proves the following:
"[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." [Markel v William Beaumont Hosp,____ Mich, ____;____ 982 N.W.2d 151, 152 (2022), quoting Grewe, 404 Mich. at 253 (quotation marks and citations omitted; alterations in original).]
The "critical question" identified by the Grewe Court
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 [the doctor] or whether the plaintiff and [the doctor] had a patient-physician relationship independent of the hospital setting. [Grewe, 404 Mich. at 251.]
"The rule from Grewe is that when a patient presents for treatment at a hospital emergency room and is treated during their hospital stay by a doctor with whom they have no prior relationship, a belief that the doctor is the hospital's agent is reasonable unless the hospital does something to dispel that belief." Markel, ____Mich at____; 982 N.W.2d at 153. The fact that the patient does not recall the treating doctor does not preclude a finding that the patient reasonably believed that the doctor was an agent of the hospital. Id. at ____; 982 N.W.2d at 153-154. And the patient's testimony is not required to establish ostensible agency under Grewe. Id. at ____; 982 N.W.2d at 154.
In this case, Stempniak presented to the emergency room of Garden City Hospital for treatment of her abdominal pain that had persisted for three days. A member of the hospital's emergency staff sought a surgical consultation with Dr. Gross. It was ultimately determined that Stempniak needed gallbladder surgery, which was performed by Dr. Gross. It is undisputed that Stempniak had never met Dr. Gross before the consultation and she did not have a pre-existing relationship with him or any of the other medical staff that treated her during her stay at Garden City Hospital. We find that there is sufficient evidence from which a reasonable trier of fact could conclude that Stempniak went to Garden City Hospital for treatment of her physical ailments and expected to be treated by the hospital. See Grewe, 404 Mich. at 253-254.
Garden City Hospital contends that Stempniak cannot establish that she had a reasonable belief that Dr. Gross was an agent of the hospital because she did not recall meeting him and did not recall any conversations with him. Stempniak's lack of recall does not preclude a finding that she reasonably believed that Dr. Gross was an agent of the hospital. Markel, ____Mich at____; 982 N.W.2d at 153-154.
Garden City Hospital further argues that it did not affirmatively act or make any representations that would create in Stempniak's mind the reasonable belief that Dr. Gross was acting on behalf of the hospital. But a principal does not need to affirmatively act to create ostensible agency. Id. at ____; 982 N.W.2d at 153 (overruling VanStelle v Macaskill, 255 Mich.App. 1, 10, 662 N.W.2d 41 (2003) "to the extent that [it] requires a plaintiff to show some additional, affirmative act by the hospital in every emergency room case to prove ostensible agency[.]"). The Grewe Court recognized that "[a]n agency is ostensible when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent ...." 404 Mich. at 252 (cleaned up). In other words, a principal's failure to act could give rise to the creation of an ostensible agency.
In Grewe, the Supreme Court found that the plaintiff's belief in the defendant doctor's status as the ostensible agent of the defendant hospital was reasonable because there was "nothing in the record which should have put plaintiff on notice that [the defendant doctor] . . . was an independent contractor as to an employee of the hospital." Id. at 253. In this case, Garden City Hospital asserts that the record establishes that it affirmatively acted to inform Stempniak that some of the physicians were not its employees when it provided her with a consent form that she signed before the surgery. The two-page "consent for treatment" form, in a section titled, "I understand that," provided:
Some doctors and staff are not employees of Garden City Hospital. I know that Garden City Hospital is not responsible for their actions. I also know I may receive separate bills from them even though they provide services to me at Garden City Hospital. I will work with their offices to answer questions about my insurance.
While the above language arguably informed Stempniak that "some" doctors and staff were not employees of Garden City Hospital, it did not provide her with any information regarding Dr.
Gross's employment status. Further, Stempniak testified that she had no memory of signing the form, no memory of whether its contents were explained to her, and no understanding of what it meant because she was in significant pain at the time that she signed it. Stempniak explained, "I was in so much pain I would have signed anything that I thought was going to help me get rid of the pain." Viewing the evidence in the light most favorable to Stempniak as the non-moving party, we find that there is a genuine issue of material fact whether Stempniak had a reasonable belief that Gross was an agent of the hospital and thus affirm the trial court's denial of the hospital's motion for summary disposition.
Affirmed.
Sima G. Patel, Michelle M. Rick.
BOONSTRA, J. (DISSENTING).
I respectfully dissent. I would hold, in light of the clear language of the General Consent for Treatment form that plaintiff Barbara Stempniak (Stempniak) signed, that the trial court erred by denying defendant Prime Healthcare Services-Garden City, LLC's (Garden City Hospital) motion for summary disposition. I would therefore reverse and remand for entry of an order granting summary disposition in favor of Garden City Hospital.
See the business entity information and filings with Department of Licensing and Regulatory Affairs Corporations Online Filing System at: https://cofs.lara.state.mi.us/CorpWeb/CorpSearch/CorpSummary.aspx?token=nBxILn58HwVtv4 JMRDwTm1cWblopjmzIgq3FCQzRMH7Z0mRAdeXC1AbuVgwLHatvaJAO7EgssifzFmWzFJ mQWaK7Z6LSgQZ4fs6ilYKLFPhlqMsZ0m9zOWK9qG76MsWSEaBEndFO4Be5EPRSe0vIQ LuiGUCx3LThqXj1pxHcaNsQGgSqpZqmrk0f9YLPVbjKokb8cur72SyFRf+BYQGq5v6dJBXgt VK8Kj+z1+pnLRRcT5auICfEXZrwtpEaqvnGABKsRj2/PJDOmf+HFgGWxOrs7uBeWsZyd2E 86KKqcNkmc98IlfrBW2bZO12In9SRMUGVYXaaWuBP2PWbREuDCJ/naEbMEUZx.
The trial court decided the motion without oral argument and without offering any analysis.
In Grewe v Mount Clemens General Hosp, 404 Mich. 240; 273 N.W.2d 429 (1978). Our Supreme Court held:
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.... 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.
More recently, the Supreme Court decided Markel v William Beaumont Hosp, ____Mich at, ____; ____982 N.W.2d 151, 153 (2022), in which the Court stated:
The rule from Grewe is that when a patient presents for treatment at a hospital emergency room and is treated during their hospital stay by a doctor with whom they have no prior relationship, a belief that the doctor is the hospital's agent is reasonable unless the hospital does something to dispel that belief. [Emphasis added.]
Markel also made it clear that "a hospital will not be vicariously liable under an ostensible agency theory every time a person receives medical treatment in a hospital" and that "agency cannot arise 'merely because one goes to a hospital for medical care.'" Markel, Mich. at; 982 N.W.2d at 153, quoting Sasseen v Community Hosp Foundation, 159 Mich.App. 231, 240; 406 N.W.2d 193 (1986).
In this case, it is undisputed that Stempniak was treated at Garden City Hospital by Dr. Robert Gross, and that Dr. Gross was not an employee of Garden City Hospital. Rather, he was an independent contractor who provided medical services at the hospital. It is also undisputed that Garden City Hospital provided Stempniak with a General Consent for Treatment form-which Stempniak signed-that stated in pertinent part:
Some doctors and staff are not employees of Garden City Hospital. I know that Garden City Hospital is not responsible for their actions.
Consistent with Grewe and Markel, Garden City Hospital therefore "[did] something to dispel th[e] belief," Markel, ____Mich at ____; 982 N.W.2d at 153 that Dr. Gross was its agent. That is all that was required under the law. Yet, the majority discounts or ignores the affirmative act taken by the hospital to dispel any belief that Stempniak might have had that Dr. Gross was Garden City Hospital's employee. The majority simply states that the hospital "did not provide [Stempniak] with any information regarding Dr. Gross's employment status." That is, the majority apparently posits that, in order for the General Consent for Treatment form to have been effective, it must have specifically named Dr. Gross. This simply is not the law, nor is it required by Grewe or Markel. Indeed, it would be preposterous to suggest that the General Consent for Treatment form was advising Stempniak that some other patient's doctors were not agents of the hospital. It of course was advising Stempniak that her own doctor-Dr. Gross-was not (or at least may not be) an employee of the hospital, and that the hospital was therefore "not responsible for [his] actions." By signing the form, Stempniak affirmed her agreement to those terms, and she unmistakably did so in relation to her own provider, Dr. Gross, not someone else's provider.
Nor is it realistic in the real world. A hospital is not-and should not be-required to use different consent forms for each medical provider, or to use different forms for employee-providers and non-employee-providers (or perhaps to otherwise distinguish them with color-coded lab coats or name tags), in order to satisfy the requirement that they "[do] something to dispel th[e] belief," Markel, Mich. at; 982 N.W.2d at 153, that a provider is a hospital employee.
In Michigan, parties are bound by the documents they sign, as they are presumed to be aware of the contents of those documents; the failure to read a document is no excuse. Galea v FCA U.S. LLC, 323 Mich.App. 360, 369; 917 N.W.2d 694 (2018). A General Consent for Treatment form is no exception.
This leaves the majority to fall back on Stempniak's testimony that she was in pain at the time she signed the consent form. But while we may properly empathize with Stempniak, plaintiffs have not established that she signed the consent form under duress or that her signature was forged or obtained by fraud and therefore legally invalid. See Galea, 323 Mich.App. at 369. It is simply not the law that whenever a patient-who is otherwise in a good mental health and able to manage her own affairs-is in pain, her signature on a legal document may be invalidated. Were that the law, one might expect the law also to require that a guardian ad litem be appointed-whenever a patient presents with pain-to review and sign consent forms on her behalf. Of course, no one has made such an argument. Yet the majority appears to credit Stempniak's pain as a reason to discount the clear language of the consent form, without affecting, apparently, her competency in any other area. Because that is not the law, I cannot agree with the majority on this issue.
Indeed, plaintiffs' sole (footnoted) argument in this regard was that "because of the severe pain she was in at the time the form was presented to her, she had no memory of signing it, no memory of whether its contents were explained to her, and no understanding of what it meant.... There is, therefore, some doubt that, under the circumstances in which it was signed, the consent form on which the defendant relies reasonably conveyed anything to Ms. Stempniak." But neither plaintiffs nor the majority cite to anything in the law supporting a conclusion that such circumstances (which are hardly remarkable) invalidate a legally-binding document.
I would hold that the record establishes that Stempniak was a competent legal adult who signed a consent form and should therefore be presumed to be aware of its contents. Id. I would further hold that the General Consent for Treatment form was an affirmative act on the part of Garden City Hospital that dispelled any reasonable belief Stempniak may have formed regarding
Dr. Gross's employment status. Markel, _____Mich at _____; 982 N.W.2d at 153.
I therefore respectfully dissent.