Opinion
364728
11-19-2024
DARLENE WEBB and JOHN WEBB, Plaintiffs-Appellants, v. HILLSDALE HOSPITAL, also known as HILLSDALE COMMUNITY HEALTH CENTER, Defendant-Appellee, and HILLSDALE OBSTETRICS &GYNECOLOGY, PC and ALFRED K. BEDIAKO, M.D., Defendants.
UNPUBLISHED
Hillsdale Circuit Court LC No. 2021-000287-NI
Before: RIORDAN, P.J., and YOUNG and WALLACE, JJ.
PER CURIAM
In this action alleging medical negligence, vicarious liability, and loss of consortium, plaintiffs, Darlene and John Webb, appeal as on leave granted, the stipulated order dismissing plaintiffs' claims with prejudice. Plaintiffs challenge the circuit court order granting summary disposition to defendant, Hillsdale Hospital ("the hospital"), under MCR 2.116(C)(10) (no genuine dispute of material fact). On appeal, plaintiffs contend there remained a question of fact as to whether codefendant, Dr. Alfred K. Bediako, M.D., was an ostensible agent of the hospital, rendering the hospital vicariously liable for Dr. Bediako's alleged medical negligence. Because an issue of fact remains regarding whether Dr. Bediako was an ostensible agent of the hospital, we reverse the circuit court's order and remand this case for further proceedings.
Darlene Webb v Hillsdale Hosp, unpublished order of the Court of Appeals, entered October 5, 2023 (Docket No. 364728).
I. FACTUAL BACKGROUND
This appeal arises from Dr. Bediako's treatment of Darlene Webb for removal of an ovarian mass. Dr. Bediako is a licensed obstetrician and gynecologist in Michigan, and owns defendant Hillsdale Obstetrics and Gynecology, P.C., an obstetrics and gynecology clinic located about half a mile from the hospital.
A. DR. BEDIAKO'S RELATIONSHIP WITH THE HOSPITAL
Dr. Bediako had staff privileges at the hospital since 1992, and it was the only hospital where he performed procedures. At the time of Darlene's surgery, he was the only gynecologist at the hospital - the hospital's Department of Obstetrics and Gynecology consisted of him and whatever other midlevel providers were available to treat patients, such as nurses. While treating patients both at the hospital and in his clinic, Dr. Bediako wore scrubs that said his name and "OB Department" on them. In the hospital, he also wore a medical badge for identification purposes that said "Hillsdale Hospital" on it. When questioned about the issue of his employment status, Dr. Bediako insisted his patients knew he was in private practice but admitted he never told them he was.
B. DR. BEDIAKO'S TREATMENT OF DARLENE
Darlene first met Dr. Bediako in 2007. An ultrasound done on October 1, 2007 revealed Darlene had a left ovarian mass. After a consult with Dr. Bediako on October 5, 2007 at his clinic, no treatment was recommended, and Dr. Bediako said the mass would go away. Darlene did not return to see Dr. Bediako, or any gynecologist, between 2007 and 2019. In 2019, Darlene began experiencing urine incontinence and pain in the lower left quadrant of her abdomen. She was referred by her primary care physician to a physician's assistant, Betty DeLong, PA, who specializes in urology. Ms. DeLong ordered an ultrasound to be performed at the hospital on September 13, 2019. The ultrasound revealed a left ovarian mass and an adjacent left ovarian cyst. After discussing the results, Dr. DeLong referred Darlene to Dr. Bediako because the mass was around the ovary and needed to be treated by a gynecologist.
Darlene went to see Dr. Bediako at his clinic two more times before surgery was scheduled. On November 22, 2019, Darlene signed a multiple-page consent form for a laparotomy to remove the ovarian mass - it is unclear from the record where the consent form was signed. The top of the consent form had the hospital's logo on it, and was labeled "Informed Consent for Surgery or Other Procedure." The first paragraph of the first page of the consent form stated "Your doctors are not employees or agents of the hospital. They are independent contractors." Paragraph five on the first page also stated "I herby [sic] authorize Hillsdale [Hospital] to provide its appropriate hospital services and care necessary in conjunction with the procedure(s) above described." Darlene does not recall signing any forms, and testified her memory is "very, very bad ...." When asked whether Dr. Bediako's was an employee of the hospital, Darlene testified that she believed he was.
Darlene presented to the hospital on November 27, 2019 for an "exploratory laparotomy with excision of the left ovarian mass," but her condition worsened after surgery because of a perforation of the small intestine. Darlene remained critically ill after a second laparotomy to repair the bowel perforation, and remained on a colostomy bag until July 27, 2020.
C. PROCEDURAL POSTURE
On April 19, 2021, plaintiffs filed a complaint against Dr. Bediako and Hillsdale Obstetrics and Gynecology, P.C., and against the hospital. Count I alleged Dr. Bediako breached the standard of care when performing the laparotomy, which caused a bowel perforation that he failed to timely diagnose and treat postoperatively. Plaintiffs alleged that but for Dr. Bediako's negligence, Darlene would not have suffered a bowel perforation, and it would not have advanced to sepsis, requiring intubation, a colostomy bag, additional surgery, and an extended hospital stay and inpatient rehabilitation. Plaintiffs also alleged Dr. Bediako was an employee, agent, servant, or ostensible agent of the hospital and therefore, the hospital was vicariously liable for Dr. Bediako's alleged medical negligence.
The hospital moved for summary disposition under MCR 2.116(C)(8) (legal sufficiency) and MCR 2.116(C)(10) (factual sufficiency), arguing there was no genuine issue of material fact as to anything other than damages. Although the hospital moved for summary disposition under MCR 2.116(C)(8) and (C)(10), the circuit court addressed the motion only under (C)(10). The circuit court concluded that, "[w]e have a signed consent agreement, we have an ongoing relationship with Dr. Bediako, and its [sic] against that backdrop that I find in favor of Hillsdale Hospital...." Plaintiffs now appeal.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court's decision to grant or deny summary disposition. Meemic Ins Co v Fortson, 506 Mich. 287, 296; 954 N.W.2d 115 (2020). A motion for summary disposition under MCR 2.116(C)(10), which tests the factual sufficiency of the plaintiff's claim, is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 160; 934 N.W.2d 665 (2019). "A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might disagree." Johnson v Vanderkooi, 502 Mich. 751, 761; 918 N.W.2d 785 (2018) (quotation marks and citation omitted). When reviewing the trial court's decision to grant or deny summary disposition under MCR 2.116(C)(10), this Court considers the parties' documentary evidence in the light most favorable to the nonmoving party. Johnson, 502 Mich. at 761. "[R]eview is limited to the evidence that had been presented to the circuit court at the time the motion was decided." Innovative Adult Foster Care, Inc v Ragin, 285 Mich.App. 466, 476; 776 N.W.2d 398 (2009).
III. ANALYSIS
"A hospital may be 1) directly liable for malpractice, through claims of negligence in supervision of staff physicians as well as selection and retention of medical staff, or 2) vicariously liable for the negligence of its agents." Cox v Bd of Hosp Managers for the City of Flint, 467 Mich. 1, 11; 651 N.W.2d 356 (2002). "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 N.W.2d 429 (1978). Likewise, a hospital is not liable for the alleged negligence of an independent contractor "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." Chapa v St Mary's Hosp of Saginaw, 192 Mich.App. 29, 33; 480 N.W.2d 590 (1991). A hospital is only "vicariously liable for the malpractice of actual or apparent agents." Id. In an actual agency relationship, it is the hospital's power or ability to control the agent "that justifies the imposition of vicarious liability." Laster v Henry Ford Health Sys, 316 Mich.App. 726, 736; 892 N.W.2d 442 (2016). In this case, the parties do not dispute that Dr. Bediako was not an actual agent of the hospital. The parties instead rely on ostensible agency to establish vicarious liability.
We proceed first with the understanding that "[a]gency is always a question of fact for the jury." Grewe at 253, quoting Stanhope v Los Angeles College of Chiropractic, 54 Cal App2d 141, 146; 128 P.2d at 705, 708 (1942). "Where there is a disputed question of agency, any testimony, either direct or inferential, tending to establish agency creates a question of fact for the jury to determine." Meretta v Peach, 195 Mich.App. 695, 697; 491 N.W.2d 278 (1992), citing, Jackson v Goodman, 69 Mich.App. 225, 230; 244 N.W.2d 423 (1976).
In establishing an ostensible agency relationship between a physician and a hospital, "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" Grewe, 404 Mich. at 251. "The reasonableness of the patient's belief in light of the representations and actions of the hospital is the 'key test' embodied in Grewe." Chapa, 192 Mich.App. 29, 34; 480 N.W.2d 590 (1991). Our Supreme Court in Grewe adopted the three part test created in Stanhope to determine whether a physician is an ostensible agent of the hospital. The following elements must be met: (1) "[t]he person dealing with the agent must do so with belief in the agent's authority and this belief must be a reasonable one"; (2) "such belief must be generated by some act or neglect of the principal sought to be charged"; and (3) "the third person relying on the agent's apparent authority must not be guilty of negligence." Grewe, 404 Mich. at 253 (citations omitted).
The focus of first element of the Grewe test, as noted in Smith v Saginaw S&L Ass'n, 94 Mich.App. 263, 271-272; 233 N.W.2d 613 (1979), is not on whether the principal has affirmatively identified the wrongdoer as its agent, but whether a third person is reasonable in their belief in the agent's authority based on the principal's actions. One such factor considered in the reasonableness inquiry is "whether the hospital provided the plaintiff with [the physician] or whether the plaintiff and [the physician] had a patient-physician relationship independent of the hospital setting." Grewe, 404 Mich. at 251. Whether such a relationship exists is based on the totality of the circumstances.
Although we are required to follow cases decided on or after November 1, 1990, see MCR 7.215(J)(1), a published case decided by this Court "has precedential effect under the rule of stare decisis," MCR 7.215(C)(2). See also Woodring v Phoenix Ins Co, 325 Mich.App. 108, 114-115; 923 N.W.2d 607 (2018), (stating that although this Court is not "strictly required to follow uncontradicted opinions from this Court decided before November 1, 1990," those opinions are nonetheless "considered to be precedent and entitled to significantly greater deference than are unpublished cases") (emphasis omitted).
In reviewing the totality of the circumstances, we turn first to the relationship between Dr. Bediako and Darlene. The trial court found there was no issue of material fact as to hospital's ostensible agency over Dr. Bediako because it found Darlene and Dr. Bediako had "an ongoing relationship." "[A]n independent relationship between a doctor and a patient that preceded a patient's admission to a hospital precludes a finding of ostensible agency, unless the acts or omissions of the hospital override the impressions created by the preexisting relationship and create a reasonable belief that the doctor is an agent of the hospital." Zdrojewski v Murphy, 254 Mich.App. 50, 66; 657 N.W.2d 721 (2002). Put differently, a pre-existing relationship does not, in and of itself, preclude ostensible agency without further inquiry. Strach v St John Hosp Corp, 160 Mich.App. 251, 263; 408 N.W.2d 441 (1987) ("[W]e express our disapproval of the often-suggested proposition that an independent relationship between the patient and his treating physician requires a finding of no agency relationship as a matter of law. It seems apparent that acts or omissions of a defendant hospital in the particular circumstances of treatment may override the impressions created by a previous relationship and reasonably create a belief that a staff physician is acting on behalf of the hospital.")
Dr. Bediako and Darlene knew each other before the surgery in question. She met him in 2007 regarding her ovarian mass and twice before her 2019 surgery. But that a relationship preexisted the surgery is not the legal test. The trial court must consider:
(1) whether the plaintiff was referred to the physician by the lessor, (2) whether the plaintiff's entire treatment occurred at the lessor's clinic, (3) whether the physician represented himself as a clinic member, (4) whether the plaintiff had reason to believe that the physician was merely an independent contractor, and (5) whether the physician's bill was issued on the clinic's stationery. [Sasseen v Community Hosp Foundation, 159 Mich.App. 231, 239; 406 N.W.2d 193 (1986).]
In this case, Darlene, over ten years after a single encounter with Dr. Bediako, was referred to Dr. Bediako by a physician's assistant. Her two visits preceding surgery occurred in Dr. Bediako's clinic, but the ultrasound and blood test needed to determine whether to remove the ovarian mass, occurred at the hospital.
Additionally, Dr. Bediako testified he never told his patients he was a gynecologist in private practice. He just assumed they knew. Further, while he was seeing patients in his clinic, he wore scrubs that said "Dr. Bediako, OB Department." Given that Dr. Bediako's private practice was half a mile from the hospital, his scrubs said "OB Department," and his clinic and the hospital shared the name "Hillsdale," it is reasonable to infer that the "department" to which Dr. Bediako belongs is part of the hospital. Darlene's deposition and some additional information from Dr. Bediako's deposition, taken together, present a question of fact as to whether this is a preexisting relationship contemplated by the law.
In Revitzer v Trenton Med Ctr, Inc, 118 Mich.App. 169, 174-175; 324 N.W.2d 561 (1982), this Court held a preexisting patient-physician relationship was sufficient to defeat a claim of liability under ostensible agency theory where the offending physician had been treating the plaintiff for fifteen years prior, and in Chapa, 192 Mich.App. at 31, 33-36, this Court held said relationship was sufficient to undermine ostensible agency where the offending physician had been the plaintiff's "long standing" family physician.
We also note that Darlene signed consent forms. Like a prior relationship, a consent form is a critical piece of evidence that can negate a patient's reasonable belief that the physician is an agent of the hospital, but it does not destroy an ostensible agency claim. Cases from this Court have traditionally found a consent form as stronger evidence that an ostensible agency relationship is lacking. See Tansil v Sherrod, unpublished per curiam opinion of the Court of Appeals, issued November 26, 2002 (Docket No. 237002) pp 1-2 (holding that a consent form signed by an 86 year old patient admitted for cataract surgery, which clearly stated that the physicians were independent contractors, was sufficient to negate any claim of ostensible agency, even though the patient did not read the form and had no reliable person read it to her, because "[a] party who executes a document is charged with knowledge of its contents. Dombrowski v Omer, 199 Mich.App. 705, 710; 502 N.W.2d 707 (1993)."); Wendt v Bowerman, unpublished per curiam opinion of the Court of Appeals, issued June 11, 2019 (Docket No. 343612), pp 2, 6-7 (holding there could be no ostensible agency relationship where the patient signed a consent form, where she testified she had no recollection of speaking with any anesthesiologist at the defendant hospital prior to surgery, and where the patient presented no evidence demonstrating the defendant hospital had taken some action, or neglected to act, in a way to encourage the patient to believe the anesthesiologist was an employee). However, this court and the Supreme Court have never held that a consent form per se precludes the existence of ostensible agency and here, the record reflects a question of fact as to whether this form could.
"Although MCR 7.215(C)(1) provides that unpublished opinions are not binding under the rule of stare decisis, a court may nonetheless consider such opinions for their instructive or persuasive value." Kennard v Liberty Mut Ins Co, 341 Mich.App. 47, 53 n 2; 988 N.W.2d 797 (2022) (quotation marks and citation omitted).
Although paragraph one of the consent form stated "Your doctors are not employees or agents of the hospital. They are independent contractors," paragraph five on the first page of the consent form also stated "I herby [sic] authorize Hillsdale [Hospital] to provide its appropriate hospital services and care necessary in conjunction with the procedure(s) above described." The consent form was also a Hillsdale Hospital form, with the hospital's full name and logo at the top of the first page. It is unclear from the record whether Darlene signed the consent forms in the hospital or in Dr. Bediako's clinic. Taking this evidence in the light most favorable to Darlene, we find that a question of fact remains as to whether the consent form she signed can fully negate the potential existence of ostensible agency and thus, whether her belief as to Dr. Bediako's ostensible agency was reasonable. Contrary to the dissent, we do not hold here that a hospital can never successfully inform a patient of its limited liability. In fact, we do exactly what the dissent says we do not-we take a look at the circumstances in full. Here, the record does not reflect where the consent forms were signed but does reflect that the consent forms said two things: Dr. Bediako was an independent contractor and that Hillsdale Hospital was the service provider. Looking at the facts taken together, not in isolation, leads us to the conclusion that a genuine issue of material fact exists as to whether Dr. Bediako was an ostensible agent of Hillsdale Hospital.
That conclusion is unchanged when we look at the final two Grewe factors. The second prong of the Grewe test for ostensible agency is that a plaintiff's belief in the authority of the ostensible agent must be generated by some act or neglect of the principal sought to be charged. Grewe, 404 Mich. at 253. Here there is no dispute that defendant allowed Dr. Bediako, who was the only physician working in the OB Department, to wear scrubs that said "Dr. Bediako, OB Department," and there is no dispute that the hospital issued him a badge to wear that said the hospital's name. There is nothing in the record to suggest that the hospital took any steps regarding those scrubs or that badge to counter the impression that Dr. Bediako worked for the hospital, i.e., the record suggests that the hospital neglected to ensure that the badge and/or scrubs contained anything communicating that Dr. Bediako was an independent contractor and/or was not an actual employee of the hospital. Darlene also testified at her deposition that her own personal belief was that Dr. Bediako worked for the hospital. This satisfies the second prong of Grewe.
Finally, the third prong of Grewe requires that the person relying on the agent's apparent authority must not be guilty of negligence. The record in this matter is devoid of any evidence of negligence by Darlene, and the hospital has not alleged that Darlene was negligent - the hospital's brief on appeal contains no analysis of the third prong of Grewe, other than a vague assertion that" . . . none of the three prongs of Grewe are met.").
Having established that a question of fact remains as to whether Dr. Bediako was an ostensible agent of the hospital, we remand to the trial court for further proceedings.
IV. CONCLUSION
The circuit court erred in granting the hospital's motion for summary disposition when it ruled there was no genuine dispute of fact regarding an ostensible agency theory of vicarious liability. We reverse the order of the circuit court granting summary disposition to the hospital, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
Michael J. Riordan, P.J. (dissenting).
I respectfully dissent.
The issue in this case is whether the trial court erred by granting summary disposition in favor of Hillsdale Hospital on the basis that Dr. Bediako was not an ostensible agent of the hospital. "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." Grewe v Mt Clemens Gen Hosp, 404 Mich. 240, 252; 273 N.W.2d 429 (1978) (quotation marks and citations omitted). To establish ostensible agency, the plaintiff must show, in relevant part, that "[t]he person dealing with the agent [did] so with belief in the agent's authority and this belief must be a reasonable one." Id. at 253 (quotation marks and citations omitted).
The plaintiff also must show that "such belief [was] generated by some act or neglect of the principal sought to be charged," and "the third person relying on the agent's apparent authority [was] not . . . guilty of negligence." Grewe, 404 Mich. at 253 (quotation marks and citations omitted).
"A patient who has clear notice of a treating physician's employment status or who has a preexisting relationship with a physician outside of the hospital setting cannot reasonably assume that the same physician is an employee of the hospital merely because treatment is provided within a hospital." Markel v William Beaumont Hosp, 510 Mich. 1071, 1071 (2022). Thus, this Court has held, albeit in unpublished opinions, that when a patient signs a consent form explaining that the physician is not an employee of the hospital, that consent form defeats a conclusion that the patient had a "reasonable" belief in the physician's authority. See, e.g., Wendt v Bowerman, unpublished per curiam opinion of the Court of Appeals, issued June 11, 2019 (Docket No. 343612), p 7 ("Even had plaintiff held such a belief [that Dr. Bowerman was acting as a hospital employee], it would not have been reasonable because she signed a consent form that placed her on notice that some of the physicians in the medical center were independent contractors[.]"). Other state courts are in accord. See, e.g., Brookins v Mote, 367 Mont 193, 205; 292 P.3d 347 (2012) ("[T]wo weeks prior to her child's delivery, Ann signed a Hospital consent form acknowledging that she understood Dr. Mote was an 'independent contractor' and not an employee or agent of the Hospital.... Given this record, the Hospital's provision of 'space, equipment, and personnel' for the onetime event of Allen's delivery is insufficient to give rise to an ostensible agency.").
Similarly, in this case, plaintiff Darlene Webb signed a consent form stating in the first paragraph that "[y]our doctors are not employees or agents of the hospital. They are independent practitioners." This contractual statement alone entitles Hillsdale Hospital to summary disposition because a party who signs a contract, even without reading it beforehand, "is nevertheless charged with knowledge of the terms." Casey v Auto-Owners Ins Co, 273 Mich.App. 388, 395; 729 N.W.2d 277 (2006). While the majority observes that the fifth paragraph of the consent form refers to provision of hospital services and the consent form is titled "Hillsdale Community Health Center," these facts do not defeat the disclaimer in the first paragraph because the purpose of the consent form is not merely to inform the patient that physicians are independent contractors. Rather, its clear purpose is for the hospital to explain certain details of the medical procedure to the patient for informed consent, one of which is the disclaimer that the physicians are independent contractors. Nothing in the consent form is inconsistent with that disclaimer.
The majority reasons that "the consent forms said two things: Dr. Bediako was an independent contractor and that Hillsdale Hospital was the service provider. Looking at the facts taken together . . . leads us to the conclusion that a genuine issue of material fact exists as to whether Dr. Bediako was an ostensible agent of Hillsdale Hospital." Following the majority's logic, a serviceprovider hospital can never inform a patient in writing that medical procedures take place at its facilities, or use any similar descriptive term, if the physician utilizing those facilities is an independent contractor. In a nutshell, following the majority's reasoning, the mere fact that a hospital informs a patient of its business, negates any information about an independent contractor. This logic defies reason. In any event, the fifth paragraph of the consent form states, "I herby [sic] authorize Hillsdale Community Health Center to provide its appropriate hospital services and care necessary in conjunction with the procedure(s) above described." The word "conjunction" indicates that the hospital may provide other services separate and distinct from the services provided by Dr. Bediako to the patient. Thus, the fifth paragraph is not, in any respect, inconsistent with the disclaimer that physicians are independent contractors.
As this case illustrates, written forms that should, under ordinary legal principles, have legal effect may easily be disregarded in the hospital context under the reasoning of Markel. See Markel, 510 Mich. at 1082 (VIVIANO, J., dissenting), quoting Hospital Liability for the Right Reasons, 42 Seton Hall L Rev 1337, 1356-1357 (2012) ("[O]ther states with similar rules 'have continually disregarded hospitals' attempts to educate patients through the use of admission forms that indicate that treating physicians are not employees of the institution.' ").
The trial court's grant of summary disposition is supported for the additional reason that plaintiff and Dr. Bediako had a preexisting relationship, which itself is sufficient to defeat a claim for ostensible agency. See Markel, 510 Mich. at 1071. The majority concludes otherwise, using a divide-and-conquer approach to reject both the preexisting relationship and the consent form as grounds for summary disposition. However, even disregarding the consent form, there is nothing in Markel to suggest that ostensible agency can be established despite the existence of a preexisting relationship. To the contrary, Markel repeatedly suggests otherwise. See id. at 1072 ("We agree with the panel majority that agency cannot arise merely because one goes to a hospital for medical care. But that broad statement conceals the most important distinction between [Sasseen v Community Hosp Foundation, 159 Mich.App. 231, 240; 406 N.W.2d 193 (1986)] and cases like it and this one: a preexisting relationship between doctor and patient.") (quotation marks and citation omitted); id. at 1071 ("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.)
Accordingly, because plaintiff signed a consent form clearly stating that Dr. Bediako was not an employee or agent of the hospital, and because plaintiff and Dr. Bediako had a preexisting relationship, I would affirm the trial court's grant of summary disposition in favor of the hospital.
Although my dissent is premised upon the first Grewe factor, I briefly note disagreement with the majority's analysis of the second Grewe factor, which provides that belief in the agent's authority "must be generated by some act or neglect of the principal sought to be charged." Grewe, 404 Mich. at 253 (quotation marks and citations omitted). The majority reasons that plaintiff satisfied the second Grewe factor because the hospital allowed Dr. Bediako "to wear scrubs that said Dr. Bediako OB Department" and "issued him a badge to wear that said the hospital's name." However, I find it difficult to conceive of any functioning hospital in which the individuals formally affiliated with the hospital-doctors, nurses, janitors, and so forth-would not display that affiliation by clothing or badge, or both. For example, the fact that a doctor has a badge visibly identifying him or her as affiliated with a particular hospital might allow a security guard to give the doctor access to hospital parking or restricted areas of the hospital, neither of which would be permitted for a doctor, or any other person, not affiliated with the hospital. Thus, while the majority nominally recognizes that the second Grewe factor may not be satisfied in certain cases, this only occurs in fanciful scenarios where hospital doctors regularly provide treatment and engage with the public without any visual cues whatsoever that they are affiliated with the hospital or displaying anything signifying that they are allowed to be on hospital premises.