Michigan Cases January 19, 2024: Grzywacz v. Hidalgo

Case Description

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Oakland CC: 2020-181759-NH

Elizabeth T. Clement, Chief Justice, Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch Kyra H. Bolden, Justices

ORDER

On order of the Court, the application for leave to appeal the June 29, 2023 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

Bernstein, J., would direct oral argument on the application.

Bolden, J. (dissenting).

I respectfully dissent from this Court's denial of plaintiff's application for leave to appeal in this case, which concerns ostensible agency and the Court of Appeals' interpretation and application of this Court's order in Markel v William Beaumont Hosp , 510 Mich. 1071 (2022). Rather than denying leave, I would have granted oral argument on the application for leave to appeal because this case offers an opportunity to provide additional guidance to lower courts regarding Markel and, relatedly, the boundaries of ostensible agency in medical malpractice actions.

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In Markel , this Court summarized the rule in Grewe v Mt Clemens Gen Hosp , 404 Mich. 240, 253 (1978), regarding ostensible agency in an emergency room setting:

[W]hen a patient presents for treatment at a hospital emergency room and is treated during their hospital stay by a doctor with whom they have no prior relationship, a belief that the doctor is the hospital's agent is reasonable unless the hospital does something to dispel that belief. Put another way, the "act or neglect" of the hospital is operating an emergency room staffed with doctors with whom the patient, presenting themselves for treatment, has no prior relationship. [ Markel , 510 Mich. at 1071-1072.]

On the other hand, "[a] patient who has clear notice of a treating physician's employment status or who has a preexisting relationship with a physician outside of the hospital setting cannot reasonably assume that the same physician is an employee of the hospital merely because treatment is provided within a hospital." Id . at 1071.

Markel recognized that a core aspect of Grewe 's holding is that" '[a]n agency is ostensible when the principal intentionally or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.'" Id . at 1072, quoting Grewe , 404 Mich. at 252 (quotation marks and citations omitted; emphasis in Markel ). Markel overruled VanStelle v Macaskill , 255 Mich.App. 1, 10 (2003), which was cited by the Court of Appeals for the requirement that "the putative principal must have done something that would create in the patient's mind the reasonable belief" of agency, holding that, "[t]o the extent that VanStelle requires a plaintiff to show some additional, affirmative act by the hospital in every emergency room case to prove ostensible agency, it is in direct tension with Grewe ," Markel , 510 Mich. at 1072. Markel further clarified that, under Grewe 's rule, a crucial issue is whether the plaintiff "look[ed] to" the hospital for medical treatment and not merely as a location where the plaintiff's physician would render treatment. Id . at 1071. Additionally, this Court held that patient testimony is not required to establish ostensible agency. Id . at 1072.

In other words, Markel stands for the proposition that a plaintiff asserting liability under an ostensible-agency theory is not always required to show an affirmative act on the part of the hospital. Rather, the emergency room setting and the lack of a preexisting relationship between the patient and treating doctor may be sufficient to survive a defendant hospital's motion for summary disposition.

Although Markel provided some clarity as to the scope of ostensible agency, I believe this case would have been an ideal case to provide further guidance to the bench and bar. The patient at issue, Jacqueline Grzywacz, was first treated at an emergency room and then transferred to defendant, Ascension Providence Rochester Hospital (the Hospital), to be treated by her cardiologist, defendant Samer Kazziha, M.D., who was an independent

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physician with staff privileges at the Hospital. The Court of Appeals summarized additional pertinent facts of this case as follows:

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. . . .

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

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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). . . .

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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. [ Grzywacz Estate v Hidalgo , unpublished opinion of the Court of Appeals, issued June 29, 2023 (Docket No. 360424), pp 2-4.]

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The Court of Appeals affirmed, holding that the trial court correctly granted the Hospital's motion for summary disposition. Id . at 7. The panel noted that "Jacqueline did not look to the hospital for medical treatment, but only as a location where her physician would treat her," and that the Hospital's consent form "specifically notified her that 'most physicians' in the Hospital worked independently and billed separately for their services." Id . at 6. Further, the panel observed that "Jacqueline did not present to the Hospital's emergency room seeking treatment on an emergency basis" and that "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." Id .

The Court of Appeals appears to have found the language of the consent form and the fact that Jacqueline was not admitted by the Hospital to be treated for emergency medical treatment in an emergency room as dispositive. However, I believe the facts of this case suggest that summary disposition may have been premature.

It is true that Jacqueline was admitted to the Hospital to receive treatment from Dr. Kazziha and that Dr. Kazziha did in fact treat her. However, after Dr. Kazziha performed a procedure, Jacqueline displayed symptoms of a stroke-an emergency requiring a "rapid response"-and she was treated by Dr. Kumar and Dr. Hidalgo. There is no indication that Dr. Kazziha treated Jacqueline after performing the cardiac catheterization procedure, nor does the record indicate that Jacqueline had any preexisting relationship with either Dr. Kumar or Dr. Hidalgo. Considering the medical emergency and responsive treatment rendered by Dr. Kumar and Dr. Hidalgo, I believe whether Jacqueline "looked to" the Hospital for medical treatment and not merely as a location where Dr. Kazziha would render treatment remains a close question in this case. See Markel , 510 Mich. at 1071. Accordingly, I would have granted oral argument on the application.

Moreover, there appears to be conflicting applications of Markel and Grewe in Court of Appeals' decisions as they relate to the language and dispositive weight of consent forms. See e.g., Stempniak v Prime Healthcare Services - Garden City, LLC , unpublished per curiam opinion of the Court of Appeals, issued July 27, 2023 (Docket No. 361018) (holding that although the consent form signed by the patient stated that "[s]ome doctors . . . are not employees of [the] [h]ospital," summary disposition was not appropriate because there remained a genuine issue of material fact whether the patient had a reasonable belief that the treating doctor was an agent of the hospital). Therefore, I believe granting this application to clarify Markel would be in the best interest of judicial economy, particularly in light of the orders issued by this Court requiring the Court of Appeals to apply or reconsider similar cases in light of Markel . See Morgan v Lakeland Med Ctr , 511 Mich. 968 (2023); Maitland v Jaskierny , ___ Mich. ___; 996 N.W.2d 480 (2023); Kaczmarczyk v Dearborn Surgery Ctr , ___ Mich. ___; 996 N.W.2d 491 (2023); LaValley v St Mary Mercy Hosp , 512 Mich. 906 (2023).

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In sum, I believe this case presented an opportunity for this Court to clarify its order in Markel and provide additional guidance to lower courts as to the boundaries of ostensible agency in medical malpractice actions. Therefore, I respectfully dissent.