Michigan Cases June 29, 2023: Estate of Grzywacz v. Hidalgo

Case Description

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UNPUBLISHED

Oakland Circuit Court LC No. 2020-181759-NH

Before: Patel, P.J., and Cavanagh and Redford, JJ.

Per Curiam.

In these consolidated cases, plaintiff appeals by leave granted the trial court's orders granting defendant-appellee's motions for summary disposition pursuant to MCR 2.116(C)(10). We affirm.

I. FACTUAL BACKGROUND

On December 4, 2016, plaintiff Jacqueline Grzywacz's husband, plaintiff George Grzywacz, took her to the emergency department at Henry Ford Macomb Hospital (Henry Ford Macomb) with complaints of chest pain and elevated blood pressure. While in the emergency room, Jacqueline was given "nitro paste" for her pain and hypertension, which "much improved"

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her condition, and "she was feeling better and calmed down." She underwent a chest x-ray and an EKG, both of which were normal, and further blood tests revealed that she had not suffered myocardial damage. When Jacqueline was "ready to be discharged," and planned on "going home," Henry Ford Macomb suggested that she stay for a 24-hour observation. She requested to be transferred to defendant-appellee, Ascension Providence Rochester Hospital, formerly known as Crittenton Hospital Medical Center (the Hospital), to be treated by her own cardiologist, defendant Samer Kazziha, M.D., an independent physician with staff privileges at the Hospital. The transfer took place later that evening.

Dr. Kazziha contacted Sindhu Koshy, M.D., Dr. Kazziha's partner in their private practice, defendant Cardiovascular Consultants, and asked her to see Jacqueline at the Hospital. Dr. Koshy, also an independent physician with staff privileges at the Hospital, was the on-call cardiologist from Cardiovascular Consultants at the time of Jacqueline's transfer. Dr. Koshy testified:

I was contacted by Dr. Kazziha who let me know that [Jacqueline] was coming because he accepted the transfer and the ER called and let me know that she had arrived and the nurse called me later to go over her med reconciliation.

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[Dr. Kazziha] called to let me know that there was a patient of his being transferred. [Jacqueline] was having chest pains. They had suggested a cardiac cath[eter]. [Jacqueline] wanted to have the cardiac cath completed by [Dr. Kazziha]. That's why she was being transferred and that's about all he said. [Dr. Kazziha] said to evaluate her once she gets there. That was the plan.

Before receiving any treatment at the Hospital, Jacqueline signed a Consent for Treatment and Financial Agreement, stating, "I understand that most physicians who practice at the hospital independently provide services and I will be billed separately for these services." Jacqueline had never met nor been treated by Dr. Koshy before. Dr. Koshy evaluated Jacqueline in the Hospital on December 5, 2016. Dr. Koshy could not recall what information her hospital identification badge contained at the time she treated Jacqueline, but stated that she typically wore a badge on the front of her lab coat which might have had her name, and likely had the name of the hospital, on it. Dr. Koshy did not recall having a discussion with Jacqueline or her family about whether she was employed by the Hospital, but stated that, if she had been asked, she would not have said that she was employed by the Hospital. Dr. Koshy also did not recall telling Jacqueline that she was "employed by Cardiovascular Consultants," however, she "probably would have explained" to Jacqueline at the onset that she worked "in association with Dr. Kazziha."

Dr. Koshy diagnosed Jaqueline with unstable angina and scheduled a stress echo and a cardiac catheterization to be performed by Dr. Kazziha the following day. On December 6, 2016, Dr. Kazziha completed the cardiac catheterization procedure, at 12:52 p.m., with no findings of, or treatment for, any significant coronary artery disease. While Dr. Kazziha discussed the results with the family, the nursing staff in the Heart Catheterization Lab noted that Jacqueline began to display symptoms of a stroke and called for a "rapid response." Sarwan Kumar, M.D., the on-call hospitalist, answered the call, assessed Jacqueline's condition, and suspected that she had suffered a stroke. Dr. Kumar paged defendant Cesar D. Hidalgo, M.D., the on-call neurologist, who then

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ordered a CT scan for Jacqueline, which ruled out a hemorrhagic stroke. Dr. Kumar worked under the guidance of Dr. Hidalgo.

Dr. Hidalgo, the "Administrative Medical Director of Stroke Services" at the Hospital, occasionally gave presentations regarding the services offered at the Hospital. Although he testified that he was "employed by [the Hospital] as the medical director of the primary stroke center," his contract with the Hospital was for administrative purposes only, and patient care was not listed among his duties. The contract created an independent contractor relationship, stated that the Hospital "shall neither have nor exercise any control or direction over the practice of medicine by Physician, who shall not be considered for any purpose whatsoever to be an employee of [the Hospital]," and required that Dr. Hidalgo obtain "Professional Liability Coverage." Dr. Hidalgo worked out of a private "clinical office," and had privileges at the Hospital and also at Troy Beaumont Hospital. Responding to calls through the emergency department was not part of his contractual duties.

Dr. Hidalgo continued to be consulted throughout the afternoon of December 6, 2016, regarding Jacqueline's condition and treatment. Dr. Kumar testified that Dr. Hidalgo decided to personally come to Jacqueline's bedside. Dr. Danielle Fabry, a resident working under Dr. Hidalgo's supervision, described Dr. Hidalgo's presence with her at Jaqueline's bedside on the evening of December 6, 2016. Dr. Hidalgo testified that he did not come to Jacqueline's bedside until the following day. Dr. Hidalgo did not decide to immediately order a computed tomography angiography image, which allegedly would have shown that Jacqueline suffered from a middle cerebral artery ischemic stroke, and was a candidate for surgical intervention. According to Dr. Hidalgo, if Jacqueline was a candidate for surgical intervention and it was possible to perform it, the time for performing that procedure closed six hours after her stroke event which occurred around 1:00 p.m. on December 6, 2016. The window for surgical intervention spanned from 1:00 p.m. to 7:00 p.m. Ultimately, despite treatment efforts at the Hospital and at other facilities, Jacqueline's condition deteriorated. She died on June 22, 2017, at the age of 55.

Plaintiff filed a medical-malpractice or wrongful-death action against various caregivers involved in Jacqueline's care during her time at the Hospital, including Drs. Hidalgo, Kazziha, Koshy, and Kumar, along with University Physicians Group and Cardiovascular Consultants, PC. Plaintiff also sued the Hospital asserting that it had vicarious liability for the malpractice of Drs. Koshy and Hidalgo, alleging that Dr. Hidalgo was an actual agent of the Hospital, and that Dr. Koshy and Dr. Hidalgo were the Hospital's ostensible agents. Plaintiff later stipulated to the dismissal of the vicarious liability claims against the Hospital in connection with Drs. Kumar and Kazziha, and the University Physician's Group.

The Hospital moved for summary disposition regarding plaintiff's vicarious liability claims in connection with Drs. Hidalgo and Koshy, pursuant to MCR 2.116(C)(10). The Hospital argued that Dr. Hidalgo was neither an employee nor otherwise an actual agent of the Hospital, and that Drs. Hidalgo and Koshy were not its ostensible agents. The Hospital noted that, (1) Dr. Hidalgo's contract with the Hospital limited him to an administrative role and characterized him as an independent contractor over whom it had no control regarding care for his patients, (2) the consent form Jacqueline signed notified her that the physicians in the Hospital were independent, (3) no evidence suggested that the Hospital made any representations to Jacqueline or her family that Drs. Hidalgo or Koshy were its agents, and (4) any additional evidence from websites or

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presentations ostensibly bearing on those physicians' agency lacked relevance because no evidence confirmed that Jacqueline saw any. Plaintiff argued in response that Dr. Hidalgo was an actual agent of the Hospital, and that Dr. Koshy and Dr. Hidalgo were ostensible agents of the Hospital. Plaintiff emphasized that, (1) Dr. Hidalgo testified that he was "employed" by the Hospital as the medical director of its primary stroke center, (2) Dr. Koshy wore a hospital identification badge while treating Jacqueline, and failed to tell Jacqueline that she was not a Hospital employee, (3) Drs. Hidalgo and Koshy had never previously treated Jacqueline, (4) Dr. Hidalgo regularly gave presentations to the community regarding the stroke services offered at the Hospital, and (5) Jacqueline was admitted through the Hospital's emergency room.

The trial court issued opinions and orders granting summary disposition to the Hospital and dismissing plaintiff's vicarious liability claims involving Drs. Hidalgo and Koshy. The court concluded, as a matter of law, that the evidence left no question that Dr. Hidalgo was not an actual agent of the Hospital, and that Drs. Hidalgo or Koshy were not its ostensible agents.

II. STANDARD OF REVIEW

We review a trial court's ruling on a motion for summary disposition de novo. Hoffner v Lanctoe , 492 Mich. 450, 821 N.W.2d 88 (2012). A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. Smith v Globe Life Ins Co , 460 Mich. 446, 597 N.W. 2d 28 (1999). When reviewing a motion under MCR 2.116(C)(10), we consider the pleadings, along with depositions, affidavits, admissions, and other documentary evidence, while giving the benefit of any reasonable doubt to the nonmoving party. Smith , 460 Mich. at 454. Summary disposition is appropriate under MCR 2.116(C)(10) if the proffered evidence fails to establish a genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. West v Gen Motors Corp , 469 Mich. 177, 183; 665 N.W.2d 468 (2003). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Id .

III. ANALYSIS

Plaintiff argues that the trial court erred in dismissing plaintiff's vicarious liability claims against the Hospital. We disagree.

Vicarious liability is indirect responsibility imposed by operation of law. It is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of policy that one person should be liable for the act of the other. Accordingly, a master is responsible for the wrongful acts of his servant committed while performing some duty within the scope of his employment. [ Lee v Detroit Med Ctr , 285 Mich.App. 51, 65; 775 N.W.2d 326 (2009) (quotation marks and citations omitted).]

Vicarious liability imputes the negligence liability of the agent to the principal. Al-Shimmari v Detroit Med Ctr , 477 Mich. 280, 294; 731 N.W.2d 29 (2007). "In an agency relationship, it is the power or ability of the principal to control the agent that justifies the imposition of vicarious liability." Laster v Henry Ford Health Sys , 316 Mich.App. 726, 735; 892 N.W.2d 442 (2016). "Fundamental to the existence of an agency relationship is the right of the

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principal to control the conduct of the agent." Briggs Tax Service, LLC v Detroit Pub Sch , 485 Mich. 69, 80; 780 N.W.2d 753 (2010).

The plaintiff bears the burden of proof as to the existence of an agency relationship. Cox v Flint Bd of Hosp Managers , 467 Mich. 1, 12; 651 N.W.2d 356 (2002); see also Zdrojewski v Murphy , 254 Mich.App. 50, 66; 657 N.W.2d 721 (2002) (the "plaintiff must show" that the physician is the ostensible agent of the hospital). Generally, hospitals are not vicariously liable for the negligence of a physician who is an independent contractor merely using the hospital's facilities to render treatment to his or her patients. Grewe v Mt Clemens Gen Hosp , 404 Mich. 240, 250; 273 N.W.2d 429 (1978). "However, if the individual looked to the hospital to provide him with medical treatment and there has been a representation by the hospital that medical treatment would be afforded by physicians working therein, an agency by estoppel can be found." Id . To establish ostensible agency, the plaintiff must demonstrate that, (1) the person dealing with the agent did so with a reasonable belief in the agent's authority, (2) the belief is generated by some act or omission of the principal being charged with liability, and (3) the person relying on the agent's apparent authority must not be guilty of any negligence that helped to create the appearance of the agency relationship in his or her mind. Id. at 252-253.

The Hospital asserts that Dr. Hidalgo was not an actual agent of the Hospital, but rather an independent contractor with admitting privileges. " An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods , and without being subject to control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work." Campbell v Kovich , 273 Mich.App. 227, 234; 731 N.W.2d 112 (2006) (quotation marks and citation omitted). Independent contractors are not agents. Howard v Park , 37 Mich.App. 496, 499; 195 N.W.2d 39 (1972). "It has been long established in Michigan that a person who hires an independent contractor is not liable for injuries that the contractor negligently causes." DeShambo v Nielson , 471 Mich. 27, 31; 684 N.W.2d 332 (2004).

Plaintiff argues that Dr. Hidalgo was an actual agent of the Hospital because he testified that he was "employed by" the Hospital. Plaintiff asserts that his contractual and actual activities with the Hospital were not purely administrative in nature. Dr. Hidalgo's deposition testimony, when analyzed objectively, indicates that his use of the term "employed by" the Hospital, featured a colloquial, common use of the term, not a legal definition encompassing every aspect of his conduct at the Hospital. He testified that he had a contract to provide administrative services. As to providing medical treatment to patients, he testified that he did so at the Hospital and Troy Beaumont Hospital. Having employment with the Hospital to the extent of having a true master-servant relationship would hardly have been compatible with similar employment with a completely different hospital system. Further, the record does not support plaintiff's contention because no evidence establishes that the Hospital had the power or ability as principal to control Dr. Hidalgo's patient treatment that would justify the imposition of vicarious liability upon the Hospital. In our view, the evidence indicates that Dr. Hidalgo was an independent contractor performing medical services for his patients at the Hospital. His contractual relationship concerned providing administrative services only and that contract with the Hospital expressly disclaimed the Hospital's prerogative to control his practice of medicine and treatment of patients. The trial court, therefore, correctly held that Dr. Hidalgo was not an actual agent of the Hospital respecting his practice of medicine.

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To establish a claim of ostensible agency, a plaintiff must show that the plaintiff reasonably believed in the putative agent's authority generated by some act or omission of the putative principal, and that the plaintiff's own negligence did not contribute to any misapprehension. Grewe , 404 Mich. at 253. Recently, in Markel v William Beaumont Hosp , __Mich __; 982 N.W.2d 151 (2022) (Docket No. 163086), our Supreme Court clarified that the critical issue is whether the plaintiff "looked to" the hospital for medical treatment, and not merely as a location where the plaintiff's physician would render treatment. Markel, __ Mich at __; slip op at 1. Our Supreme Court explained that in Grewe , 404 Mich. at 253-255, its decision that ostensible agency existed had been guided by acknowledging as significant that no evidence should have put the plaintiff on notice that the physician was an independent contractor and there existed "no record of any preexisting patient-physician relationship with any of the medical personnel who treated the plaintiff at the hospital." Markel , __Mich at __; slip op at pp 1-2.

In this case, the record reflects that Jacqueline did not look to the hospital for medical treatment, but only as a location where her physician would treat her. She asked to be transferred from Henry Ford Macomb specifically to treat with her cardiologist, Dr. Kazziha, with whom she had a preexisting patient-physician relationship, who involved Dr. Koshy, the on-call cardiologist from Dr. Kazziha's private practice, in Jacqueline's treatment at the Hospital. Further, the Hospital's consent form, which Jacqueline signed before receiving any medical treatment, specifically notified her that "most physicians" in the Hospital worked independently and billed separately for their services.

Further, Jacqueline did not present to the Hospital's emergency room seeking treatment on an emergency basis. She had already treated at Henry Ford Macomb and was no longer experiencing an emergency requiring emergent care. Unlike in Grewe , the Hospital did not offer any physicians to Jacqueline, because she transferred to the Hospital specifically seeking treatment from her own cardiologist, Dr. Kazziha. Therefore, she did not "look to" the Hospital for treatment. Moreover, nothing implied that Drs. Hidalgo or Koshy were agents of the Hospital, and any conclusion to the contrary would not have been reasonable because the Hospital's consent form informed her that physicians in the Hospital worked and billed independently. Further, no evidence in the record indicates that the Hospital ever made any representations to Jacqueline or her family that Drs. Hidalgo or Koshy were its agents. This includes whether Jacqueline ever actually noticed Dr. Koshy's lab coat badge, let alone what information she might have gleaned from it.

Regarding the Hospital's website and Dr. Hidalgo's presentations elsewhere in the community, no evidence established that Jacqueline ever saw that website, including information regarding the Hospital's cardiac care or stroke center, at any time leading up to her transfer from Henry Ford Macomb, or that Jacqueline saw any of Dr. Hidalgo's presentations regarding his administrative role with the Hospital or the stroke center.

For these reasons, we conclude that the totality of the evidence presented no genuine issue of material fact regarding whether Drs. Hidalgo and Koshy were ostensible agents of the Hospital. Nothing in the record indicated that Jacqueline had a reasonable belief that Drs. Hidalgo or Koshy practiced medicine under the Hospital's control, or that any act or omission of the Hospital generated a reasonable belief of ostensible agency permitting the imputation of liability upon the

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Hospital. Accordingly, the trial court correctly granted the Hospital summary disposition regarding the vicarious liability claims relating to the actions of Drs. Hidalgo and Koshy.

Affirmed.