Vicarious liability claim against a hospital on an ostensible-agency theory; Actual-agency theory

The court held that the trial court properly granted summary disposition of plaintiff’s claim of vicarious liability against defendant-Beaumont on an ostensible-agency theory. But because plaintiff was not put on notice that Beaumont’s “motion encompassed a challenge to her actual-agency theory, and was not provided an opportunity to address that issue given the lack of notice or any indication the trial court would address” it, summary disposition of her vicarious liability claim under an actual-agency theory was improper. Plaintiff underwent an endometrial ablation. A week later, she went to Beaumont’s ER. She was admitted to the hospital and seen by defendant-Dr. Lonappan, a board-certified internist and hospitalist who was employed by defendant-Hospital Consultants, PC. Hospital Consultants had an agreement with plaintiff’s doctor to provide treatment for his patients that presented to Beaumont. Plaintiff claimed that Lonappan was negligent and Beaumont was vicariously liable for the negligent acts. Her “ostensible agency theory was premised an affidavit she attached to her response to Beaumont’s motion for summary disposition. In her affidavit, plaintiff contradicted her deposition testimony by stating that she was treated by multiple medical care providers at Beaumont, including Dr. Lonappan. Plaintiff also stated that while Dr. Lonappan provided medical treatment to her, plaintiff ‘was at all times under the impression’ that Dr. Lonappan was Beaumont’s employee, and that Dr. Lonappan did not make any statements or take any affirmative actions to indicate to plaintiff that she was not employed by Beaumont.” The trial court held that it could not consider her affidavit because it conflicted with her deposition testimony. The court rejected her claim that this decision was erroneous. Plaintiff’s affidavit improperly attempted to create an issue of fact that contradicted “her previous deposition testimony and, as a result, the trial court did not err in declining to consider it.” She alternatively argued that her belief “Lonappan was Beaumont’s ostensible agent was reasonable because” (1) Lonappan’s lab coat indicated affiliation with Beaumont and (2) Lonappan testified “she introduced herself to patients by stating her name and indicating Beaumont assigned her to the patient’s care.” However, given that the evidence showed plaintiff did not recall seeing Lonappan, the trial court did not err in holding that her belief that “Lonappan was an ostensible agent of Beaumont was not reasonable.” Affirmed in part, reversed in part, and remanded.