Medical malpractice; Vicarious liability under a theory of ostensible agency despite a preexisting physician-patient relationship; Sasseen v Community Hosp Found; Personal representative (PR)

In this interlocutory appeal, the court held that because plaintiff-PR presented no evidence the decedent reasonably believed defendant-Dr. Arora was the agent of defendant-Lakeland based on Lakeland’s actions or omissions, the trial court erred by finding “a genuine issue of material fact whether Lakeland could be held vicariously liable for Dr. Arora’s alleged negligence under a theory of ostensible agency.” Thus, it reversed the denial of Lakeland’s motion for summary disposition and remanded for entry of an order granting it partial summary disposition. Plaintiff contended that Lakeland summoned Dr. Arora to provide care for the decedent on 11/16/17, when he went to the ER with chest pain. It was undisputed, that “from 2010 through 2017 there was an independent, preexisting physician-patient relationship between decedent and Dr. Arora at [defendant-Great Lakes] before decedent sought care at Lakeland in” 11/17. Plaintiff asserted the “decedent believed that Dr. Arora was Lakeland’s agent because when he sought medical care from Lakeland on [11/16/17], Lakeland contacted Dr. Arora to treat him.” However, this fact alone did “not overcome the presumption that decedent’s preexisting physician-patient relationship barred a conclusion of ostensible agency unless some action or omission of Lakeland created in decedent a reasonable belief” Dr. Arora was its ostensible agent. Although he “looked to Lakeland, and not Dr. Arora, for care when he went to Lakeland after experiencing chest pain, nothing in the record supports that decedent reasonably believed that Dr. Arora was Lakeland’s agent rather than his own longstanding personal physician who had staff privileges at the hospital. The mere fact that Lakeland provided Dr. Arora to decedent without any request from decedent is not an act that would support a reasonable belief by decedent that Dr. Arora, his longtime physician whom he saw regularly at Great Lakes, was Lakeland’s agent.” Plaintiff argued the fact Dr. Arora was at the hospital when decedent arrived distinguished the case from Sasseen. But “the impressions created by the preexisting relationship between decedent and Dr. Arora can only be overridden by ‘acts or omissions of the hospital.’” The court found that the fact Dr. Arora happened to be there before decedent arrived was “not an act or omission of Lakeland and, therefore, cannot override the impressions created by decedent and Dr. Arora’s preexisting physician-patient relationship by creating a reasonable belief” he was Lakeland’s agent.