Medical malpractice; Vicarious liability; Cox ex rel Cox v Board of Hosp Managers for City of Flint; Actual agency; Laster v Henry Ford Health Sys; Ostensible agency; Grewe v Mount Clemens Gen Hosp; Markel v William Beaumont Hosp

The court held as to plaintiff-estate’s vicarious liability medical malpractice claim against defendant-hospital (McLaren) that while there was no “genuine issue of fact as to actual agency, there” was one as to ostensible agency. Thus, it reversed the trial court’s order granting McLaren summary disposition and remanded. While plaintiff’s decedent (Baker-Olson) was at McLaren awaiting aortocoronary bypass surgery, she “suffered cardiopulmonary arrest and died.” The court first concluded that plaintiff did not “provide any evidence of an actual agency relationship between” McLaren and defendant-doctor (Martin). “Because plaintiff did not meet the requisite burden of proof, the trial court properly rejected this theory.” But there was a genuine issue of material fact as to whether McLaren was “vicariously liable under a theory of ostensible agency. A reasonable fact-finder could determine that Baker-Olson reasonably believed Martin was an agent of McLaren. Baker-Olson presented to Harbor Beach emergency complaining of chest pain. She was subsequently transferred to McLaren, where [she] had a surgical consultation with Martin and was recommended for surgery. Baker-Olson did not have a preexisting relationship with Martin before going to McLaren, and she sought treatment from McLaren for her emergent heart condition.” The court added that “Martin did not indicate to Baker-Olson that he was an independent contractor. The only evidence suggesting this is the fact [he] performed surgeries at other hospitals in the area. But the fact that Martin worked at multiple hospitals does not necessarily lead to the conclusion that he was not an agent of McLaren. Baker-Olson was never given ‘clear notice’ of Martin’s employment status.” The court found that the “trial court’s emphasis on Markel III was misplaced.” Apart from the fact that Markel III was an unpublished decision, it was “distinguishable because, in Markel III, the issue of reliance was not contested by the plaintiff.” In addition, “there were key factual differences between Markel III and this case.” The court concluded a “reasonable fact-finder could determine Baker-Olson sought treatment at McLaren and relied on [it] to provide her physicians for treatment.” And while McLaren asserted “that Grewe’s holding is limited to” ER treatment, “nothing in Grewe suggests this to be the case[.]”