Medical malpractice; Vicarious liability; Ostensible agency; Independent contractor; Grewe v Mt Clemens Gen Hosp; Emergency-room treatment; Markel v William Beaumont Hosp; Consent form

The court held that plaintiffs established a genuine issue of material fact as to whether defendant-hospital could be vicariously liable for defendant-Dr. Sachwani’s alleged negligence under an ostensible-agency theory. Plaintiffs alleged the hospital was vicariously liable for the doctor’s negligence after the decedent (Nelson) entered its emergency department with a head injury, underwent surgery and a tracheostomy, and later died after bleeding around the tracheostomy site. The trial court granted the hospital summary disposition, ruling plaintiffs failed to show Nelson reasonably believed the doctor was the hospital’s agent. On appeal, the court held that Grewe and Markel required reversal because a patient has a “reasonable belief” that a doctor is the hospital’s agent when the patient “presents for treatment at a hospital emergency room” and is treated by a doctor with no prior relationship unless the hospital “does something to dispel that belief.” The court reasoned it was undisputed Nelson entered through the emergency room, had no prior relationship with the doctor, and was assigned to the doctor while receiving emergency care. Although the consent form said “some physicians” were not agents or employees of the hospital, the court found the language “equally suggests” that some doctors were employees and did not identify which doctors were independent contractors. Thus, a fact question existed whether Nelson was “advised and understood” that the doctor was not the hospital’s agent. Vacated and remanded.