Medical malpractice; Vicarious liability; Ostensible agency; Grewe v Mt Clemens Gen Hosp; Markel v William Beaumont Hosp; Effect of consent form language; Stempniak v Prime Health Servs Garden City, LLC (Unpub); Distinguishing Grzywacz v Hidalgo, MD; Standard of care expert testimony; Bahr v Harper-Grace Hosps; Cox v Flint Bd of Hosp Managers

The court held that the trial court did not err in denying defendant-hospital (PHS) summary disposition on the issue of ostensible agency as to defendant-doctor (Kattoo). It concluded the “patient consent form did not clearly inform the decedent that Dr. Kattoo was not an employee of the hospital, which is especially true where [he] took affirmative steps to imply that he was.” But the court rejected plaintiff-estate’s claim on cross-appeal that the trial court erred in granting PHS summary disposition as to unnamed other ICU staff members. Plaintiff’s decedent underwent a total knee replacement and after experiencing “a decline in pulmonary status while in recovery” was transferred to the ICU. Dr. Kattoo later approved the decedent’s transfer “from the ICU to a general medical floor that” he also supervised. Two days later, the decedent was found dead in his hospital bed. PHS contended there was no genuine issue of fact that Dr. Kattoo was not its agent. The court disagreed. PHS asserted “that because the decedent’s initial contact with Garden City Hospital was for an elective surgery with his own orthopedic doctor, [he] did not ‘look to’ the hospital for treatment.” But the court found this argument ignored “that while the decedent may not have initially looked to Garden City Hospital for treatment, once his medical prognosis worsened, he was placed in the hospital’s ICU. The ICU was not simply the location chosen by the decedent’s physician, but rather the most logical location for care and treatment given [his] critical status.” As to PHS’s reliance on its patient consent form, similar to the form at issue in Stempniak, the “form the decedent signed put him on notice that some doctors may not be employees of Garden City Hospital, but did not inform him of Dr. Kattoo’s status. This is particularly relevant where here, Dr. Kattoo was not ‘just’ a physician working in the hospital, but the director of the ICU itself, which he described as his ‘team.’ [His] conduct while the decedent was in his care did nothing to dispel any belief about his agency and, quite the opposite, bolstered it.” The court concluded “no reasonable patient would believe that the director of the ICU, with power to make transfer decisions within other departments in the hospital, was not an employee of the hospital simply because the patient was informed that ‘[s]ome doctors and staff are not employees . . . .’” Affirmed and remanded.