Miteen v. Genesys Reg’l Med. Ctr.

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

UNPUBLISHED
January 24, 2006

No. 262410
Genesee Circuit Court
LC No. 03-076705-NH

WINSTON MITEEN,

v

Plaintiff-Appellee,

Defendant-Appellant,

GENESYS REGIONAL MEDICAL CENTER,

and

JOHN TOLFREE HEALTH SYSTEM CORP,
d/b/a WEST BRANCH REGIONAL MEDICAL
CENTER, DR. ROGER BLACK, DR. STEWART
WEINER, DR. MARK RITTENGER, DR. SCOTT
GARNER, and DR. ALAN IPPOLITO,

Before: Cavanagh, P.J., and Hoekstra and Markey, JJ.

PER CURIAM.

Defendants.

Defendant, Genesys Regional Medical Center (“Genesys”), appeals by leave granted
from an order denying its motion for summary disposition. We reverse.

Defendant argues that the trial court erred by ruling that an issue of material fact exists
with respect to plaintiff’s vicarious liability claim against Genesys based on ostensible agency.
We agree.

This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought
under MCR 2.116(C)(10) tests the factual support for a claim. Id. When deciding a motion for
summary disposition, a court must consider the entire record in a light most favorable to the
nonmoving party. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The
court properly grants a motion for summary disposition under MCR 2.116(C)(10) when the
proffered evidence fails to establish a genuine issue regarding any material fact and the moving
party is entitled to judgment as a matter of law. Id.

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Plaintiff alleges that Genesys is vicariously liable for the acts of the individually named
doctors. The trial court ruled:

. . . looking at the evidence in the light most favorable to the plaintiff, as I must do
in this motion, I find that there is at the very least a fact question on the issue of
whether or not Mr. Miteen had a reasonable belief. The use of the phrase
reasonable belief is a clear invitation to a jury resolution or a fact finder
resolution. That applies . . . to Genesys . . . .

“Generally speaking, a hospital is not vicariously liable for the negligence of a physician
who is an independent contractor and merely uses the hospital’s facilities to render treatment to
his patients.” Grewe v Mt Clemens General Hosp, 404 Mich 240, 250; 273 NW2d 429 (1978);
see also Chapa v St Mary’s Hospital, 192 Mich App 29, 33-34; 480 NW2d 590 (1991). Here, it
is undisputed that the individual treating physicians were not employees of Genesys.

However, our Supreme Court acknowledged in Wilson v Stilwill, 411 Mich 587, 609-610;

309 NW2d 898 (1981), that a hospital may be liable for the acts of medical personnel who are
the hospital’s ostensible agents when a plaintiff looks to the hospital for treatment and does not
merely view the hospital as the location where his physician will treat him. For plaintiff to prove
his ostensible agency theory, he must show that he dealt with the physician with a reasonable
belief in the physician’s authority as an agent of the hospital, that his belief was generated by an
act or neglect on the part of the hospital, and that he was not guilty of negligence. Zdrojewski v
Murphy, 254 Mich App 50, 66; 657 NW2d 721 (2002). Thus, when an independent doctor-
patient relationship exists before the patient’s admission to a hospital, a finding of ostensible
agency is generally precluded unless the acts or omissions of the hospital override the
impressions created by the preexisting relationship to create a reasonable belief that the doctor is
an agent of the hospital. Id.; Chapa, supra at 33-34.

The record presented to this Court indicates that the only basis for plaintiff’s belief that
the doctors were employees of Genesys was the fact that they were present and working at the
hospital. Nevertheless, plaintiff argues that because he was transferred to Genesys without
knowledge of who his treating physician would be at that hospital, Genesys is liable under an
ostensible agency theory of liability, i.e., plaintiff “looked to” Genesys for treatment. Plaintiff,
however, relies primarily on his counsel’s recitation of the facts at the summary disposition
hearing, with virtually no citation to the lower court record. Plaintiff devotes significant effort
explaining his erroneous belief that the doctors who treated him at Genesys were agents of
Genesys was reasonable. But, his brief cites no evidence supporting the second element of
ostensible agency: that his belief was generated by an act or neglect on the part of the hospital.
Zdrojewski, supra at 66.

Plaintiff’s deposition testimony demonstrates that neither Genesys nor the doctors who

treated him there comported themselves in any manner to create his belief that these treating
physicians were employees of Genesys. To the contrary, when plaintiff was asked during his
deposition about what he recalled about being at Genesys, he candidly testified, “not very
much.” Plaintiff offers no evidence that Genesys’ actions or neglect generated his purported
belief that his treating physicians were employees of Genesys. Therefore, plaintiff’s ostensible
agency theory of vicarious liability fails as a matter of law. “Simply put, defendant, as putative
principal, must have done something that would create in [plaintiff’s] mind the reasonable belief

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that [the individual doctor] was acting on behalf of defendant.” Chapa, supra at 33-34.
“Apparent authority must be traceable to the principal and cannot be established only by the acts
and conduct of the agent.” Alar v Mercy Mem Hosp, 208 Mich App 518, 528; 529 NW2d 318
(1995). The trial court should have granted Genesys summary disposition. MCR 2.116(C)(10).
Because resolution of this issue in Genesys’ favor resolves plaintiff’s action against Genesys, we
need not address the remaining issues Genesys raises on appeal.

We reverse and remand for entry of judgment for defendant. We do not retain

jurisdiction.

/s/ Mark J. Cavanagh
/s/ Joel P. Hoekstra
/s/ Jane E. Markey

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