Medreania Johnson v. Ramachandra Kolachalam Md ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
MEDREANIA JOHNSON, UNPUBLISHED
July 21, 2016
Plaintiff-Appellant/Cross-Appellee,
v No. 326615
Oakland Circuit Court
RAMACHANDRA KOLACHALAM, M.D., LC No. 2012-129640-NH
MUBASHIR SABIR, M.D., ST. JOHN HEALTH,
and PROVIDENCE HOSPITAL AND MEDICAL
CENTER, d/b/a PROVIDENCE PARK
HOSPITAL,
Defendants-Appellees/Cross-
Appellants,
and
R. B. KOLACHALAM, LLC,
Defendant-Appellee.
Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s entry of a default judgment against her and
dismissal of her medical malpractice action as a sanction. Defendants filed a cross-appeal from
the trial court’s denial of their motion in limine and motion for partial summary disposition. We
reverse the trial court’s entry of a default judgment and dismissal of plaintiff’s action, and affirm
in part and reverse in part the trial court’s orders denying defendants’ motion in limine and
motion for partial summary disposition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff brought this medical malpractice action for injuries she sustained during a
gallbladder removal surgery performed by defendant Mubashir Sabir, M.D., at Providence Park
Hospital (Providence). Sabir, a general surgeon, performed a laparoscopic cholecystectomy (lap
chole) on plaintiff, during which he “inadvertently” cut plaintiff’s common hepatic duct (bile
duct). Upon noticing the injury, Sabir contacted defendant Ramachandra Kolachalam, M.D., to
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provide assistance in performing a second surgical procedure, a Roux-en-Y hepaticojejunostomy
(Roux-en-Y), to repair the bile duct. The Roux-en-Y was unsuccessful, and plaintiff later
required additional surgery to repair the injury.
On October 1, 2012, plaintiff filed this medical malpractice lawsuit against defendants,
asserting that Sabir was negligent in cutting the bile duct during the lap chole and that both Sabir
and Kolachalam were negligent in treating the injury. Plaintiff also alleged claims of negligence
against defendants R. B. Kolchalam, LLC, Providence, and St. John Health System (St. John)
under theories of direct and vicarious liability. Defendants Kolachalam and R. B. Kolachalam,
LLC, were ultimately dismissed under the Good Samaritan statute, MCL 691.1502(1), and the
case proceeded with defendants Sabir, Providence, and St. John.
A. CIRCUMSTANCES LEADING UP TO DISMISSAL
On June 26, 2014, the trial court issued a final trial order, setting the trial date for August
18, 2014, and providing submission dates for jury instructions, exhibit and witness lists, and
objections to proposed evidence. The order stated that it was a “continuing order” and that
“[d]ates will adjourn accordingly should the trial date change.” On July 3, 2014, the trial court
issued a notice that trial would be adjourned until October 13, 2014. The notice contained only a
change in the trial date, and did not address the submission dates for other filings. On July 9,
2014, the trial court issued a stipulated order compelling plaintiff to produce certain documents
related to plaintiff’s expert witness, Jason Green, M.D.
In September 2014, defendants filed motions to dismiss the case, arguing that plaintiff
failed to comply with the July 9, 2014 discovery order and the filing dates set in the final trial
order of June 26, 2014. On September 25, 2014, the court entered an order stating that “a default
entry is ordered against [p]laintiff” for her “failure to comply with the Final Trial Order of June
26, 2014.” On September 29, 2014, plaintiff filed an emergency motion to reinstate the case,
arguing that the failure to timely provide proposed jury instructions and an exhibit list was not
deliberate and that counsel inadvertently failed to recalculate the revised due dates when the
court adjourned trial from August until October of 2014. Along with the motion, plaintiff also
filed proposed jury instructions, an exhibit list, and a witness list.
At an October 8, 2014 hearing, the trial court granted plaintiff’s motion to reinstate the
case, concluding that dismissal was too harsh a sanction. The court instructed plaintiff’s counsel
to pay a fine of $1,000 “forthwith as a condition precedent to continue with this case,” and
instructed the parties to meet in chambers to select a new trial date. The record does not show
that the court’s oral ruling was ever entered in a written order.
On November 17, 2014, the trial court entered a new final trial order, setting trial to begin
on December 15, 2014, and ordering plaintiff to submit a witness list to defense counsel by
November 19, 2014. Plaintiff’s counsel e-filed the witness list on November 19, 2014, but
because the list was filed after 4:30 p.m., the circuit court recorded the document as being filed
on November 20, 2014. On December 5, 2014, defendants filed a second motion for entry of
default judgment, arguing that plaintiff failed to comply with the November 17, 2014 final trial
order, and her counsel failed to pay the $1,000 sanction and reinstatement fee, so the default
order remained in place. They argued that plaintiff had not complied with the July 9, 2014
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discovery order. Plaintiff responded that counsel had paid the $1,000 fee, computer difficulties
caused the delay in filing the witness list, and defendants suffered no prejudice because they
already had a copy of the witness list, which plaintiff filed with her motion to reinstate the case.
At a hearing on the motion, the trial court concluded the following:
A proper default was . . . entered in October of 2014. That was never properly set
aside even though Plaintiff’s motion was granted, and an order signing the order
was never accepted because of Plaintiff’s failure to pay a mere $30 reinstatement
fee. Plaintiff also failed to pay a $1000 sanction as ordered, and failed to comply
with the most recent final trial order. . . .
For these reasons, and those stated by Defendant, the case remains in default, and
the case is dismissed with prejudice.
B. MOTION IN LIMINE
Meanwhile, on May 22, 2014, defendants filed a motion to limine to strike plaintiff’s
expert medical witnesses, Leonard Milewski, M.D. and Dr. Green, arguing that (1) Milewski
improperly imposed a negligence per se standard by testifying that any bile duct injury during a
lap chole amounted to malpractice; (2) Green was not qualified to testify regarding the standard
of care under MCL 600.2169(1) because he did not spend the majority of his time practicing
general surgery; (3) the testimony of both doctors was inconsistent and contrary to medical
literature; and (4) neither doctor was qualified to testify regarding the propriety of Sabir
performing the Roux-en-Y procedure because they had little or no experience performing the
procedure. Following a hearing, the trial court determined that defendants misconstrued
Milewski’s testimony because he did not testify that every bile duct injury during a lap chole
amounted to malpractice, but only that this had been his experience. The court concluded that
Green spent a majority of his time practicing general surgery because there was significant
overlap between general and colorectal surgery. The court further determined that the medical
literature relied on by defendants supported Milewski’s and Green’s opinions. Accordingly, the
court denied defendants’ motion in limine.1
C. PARTIAL MOTION FOR SUMMARY DISPOSITION
On May 1, 2014, defendants filed a motion for partial summary disposition under MCR
2.116(C)(10), arguing that Providence and St. John could not be held vicariously liable for
Sabir’s actions.2 Specifically, defendants argued that no actual agency relationship existed
1
On August 25, 2014, defendants filed an application for leave to appeal in this Court, raising
the same arguments presented below. This Court denied the application “for failure to persuade
the Court of the need for immediate appellate review.” Johnson v Kolachalam, unpublished
order of the Court of Appeals, entered October 3, 2014 (Docket No. 323300).
2
Defendants additionally argued that they could not be held vicariously liable for the actions of
Kolachalam because he was previously dismissed from the lawsuit. The trial court ultimately
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because Sabir was an independent physician with staff privileges at the hospital, and no
ostensible agency relationship existed because the hospital did not hold Sabir out as its agent.
Additionally, they argued that no ostensible agency existed because Gayla Zoghlin, M.D.,
referred plaintiff for treatment to Kolachalam, and Sabir was associated with Kolachalam’s
practice. They further argued that plaintiff’s direct liability claims were improper because none
of plaintiff’s expert witnesses offered any opinion regarding acts or omissions by the hospital.
The trial court concluded that there was sufficient evidence to create a genuine issue of
material fact regarding whether Sabir was an employee of Providence and St. John for purposes
of vicarious liability. Further, the court determined that the facts supported that an ostensible
agency relationship existed because “plaintiff presented to the hospital for emergency treatment
and was seen by Sabir with whom plaintiff had no pre-existing relationship.” Accordingly, the
trial court denied defendants’ motion for partial summary disposition with regard to Sabir.3
II. DEFAULT JUDGMENT AND DISMISSAL WITH PREJUDICE
A. STANDARD OF REVIEW
Plaintiff argues that the trial court abused its discretion by entering a default judgment
and dismissing her case with prejudice as a sanction. We agree. We review for an abuse of
discretion a trial court’s dismissal of a cause of action for failure to comply with the court’s
orders. Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 NW2d 809 (2006). “An abuse of
discretion occurs when the decision results in an outcome falling outside the principled range of
outcomes.” Woodard v Custer, 476 Mich. 545, 557; 719 NW2d 842 (2006).
B. DISCUSSION
As a preliminary matter, the trial court erred by entering a default judgment against
plaintiff under MCR 2.603, because MCR 2.603(A)(1) makes clear that a default may only be
entered against a party “against whom a judgment for affirmative relief is sought.” The party
seeking affirmative relief is the plaintiff. Likewise, a default judgment may generally only be set
aside under MCR 2.603(D)(1) if the party who is subject to the default demonstrates a
meritorious defense. Therefore, under MCR 2.603, only a defendant may be subject to a default
judgment. The trial court erred by imposing a default judgment against plaintiff, and erred by
granting defendants’ second motion for entry of a default judgment in part because it concluded
that plaintiff’s case remained in default because plaintiff did not comply with procedures to set
granted defendants’ motion relating to the claim of vicarious liability for Kolachalam. This
portion of the court’s order is not challenged on appeal.
3
Defendants filed a motion for reconsideration, arguing that (1) Sabir was an employee of
Medical Resource Group (MRG), which was a separate corporate entity from the hospital, (2)
plaintiff’s referral by another physician prevented a finding of ostensible agency, and (3) the trial
court failed to provide reasons for rejecting defendants’ motion regarding plaintiff’s direct
liability claims. Without oral argument, the trial court denied the motion, concluding that
defendants failed to demonstrate a palpable error by which the court and parties had been misled.
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aside the default judgment. A circuit court necessarily abuses its discretion when it commits an
error of law. People v Duncan, 494 Mich. 713, 723; 835 NW2d 399 (2013).
The corresponding sanction that could be imposed on plaintiff is dismissal, governed by
MCR 2.504(B), which allows a court to dismiss a plaintiff’s case for failure “to comply with
these rules or a court order.” Dismissal is a drastic sanction that should be undertaken with
caution, and trial courts must carefully consider all other options on the record before imposing
such a sanction. Vicencio v Ramirez, 211 Mich. App. 501, 506; 536 NW2d 280 (1995). Before
imposing the harsh sanction of dismissal, courts should consider certain factors, including:
(1) whether the violation was willful or accidental; (2) the party’s history of
refusing to comply with previous court orders; (3) the prejudice to the opposing
party; (4) whether there exists a history of deliberate delay; (5) the degree of
compliance with other parts of the court’s orders; (6) attempts to cure the defect;
and (7) whether a lesser sanction would better serve the interests of justice. [Id. at
507, citing Dean v Tucker, 182 Mich. App. 27, 32-33; 451 NW2d 571 (1990).]
The trial court first entered a default judgment and dismissed plaintiff’s case after
plaintiff failed to comply with a July 9, 2014 discovery order and failed to timely submit filings
pursuant to a June 26, 2014 final trial order. The June 26, 2014 order stated that filing dates
would “adjourn accordingly should the trial date change,” and on July 3, 2014, the trial court
adjourned trial from August until October of 2014. Although the notice of adjournment stated
the new dates for trial, it did not clarify the revised filing deadlines. Counsel explained that the
late filings were the result of his inadvertent failure to recalculate the deadlines after the court
adjourned trial.
At a hearing on plaintiff’s motion to reinstate the case, the court attributed the violations
to counsel’s mismanagement and concluded that dismissal was too harsh a sanction under the
circumstances. The court directed plaintiff’s counsel to pay a fine of $1,000, but did not specify
when the fine was due, other than to say that it should be paid “forthwith.” Plaintiff’s counsel
paid the fine on December 5, 2014. On November 17, 2014, the court issued a new final trial
order, which required plaintiff to submit a witness list to defendants by November 19, 2014.
Although plaintiff e-filed the document on November 19, 2014, it was not recorded until the next
day. Plaintiff noted that defendants already had a copy of the witness list because plaintiff filed
it along with her motion to reinstate the case.
Under these facts, dismissal was inappropriate. It appears that plaintiff’s failure to timely
file the witness list was inadvertent, particularly when the document was e-filed on the correct
day. Defendants cannot show prejudice because they already had a copy of the witness list.
Further, counsel’s delay in paying the $1,000 fine can hardly be labeled an egregious violation
when the trial court did not specify when the fine was due and did not reduce its directive to a
written order. See In re Contempt of Henry, 282 Mich. App. 656, 678; 765 NW2d 44 (2009)
(“[A] court speaks through its written orders and judgments, not through its oral
pronouncements.”). Although plaintiff had some history of failing to comply with previous court
orders, there is no evidence that plaintiff failed to comply with other parts of the court’s orders.
Additionally, the record does not demonstrate that the trial court “carefully evaluate[d] all
available options on the record” before imposing the harsh sanction of dismissal. Vicencio, 211
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Mich App at 506. Under these circumstances, we believe a lesser sanction than dismissal would
have better served the interests of justice. Therefore, the trial court abused its discretion by
dismissing plaintiff’s case.
III. MOTION IN LIMINE
A. STANDARD OF REVIEW
This Court reviews for an abuse of discretion a trial court’s determination on a motion in
limine. Elezovic v Ford Motor Co, 472 Mich. 408, 431; 697 NW2d 851 (2005). Likewise, a trial
court’s decision to admit or exclude expert witness testimony is reviewed for an abuse of
discretion. Craig v Oakwood Hosp, 471 Mich. 67, 76; 684 NW2d 296 (2004). “[A]ny error in
the admission or exclusion of evidence will not warrant appellate relief unless refusal to take this
action appears . . . inconsistent with substantial justice, or affects a substantial right of the
opposing party.” Id. (citation and quotation marks omitted). We review questions of statutory
interpretation de novo. Woodard, 476 Mich. at 557.
B. DR. GREEN’S TESTIMONY
Defendants argue that Green’s testimony was inadmissible under MCL 600.2169(1)(b)
because Green did not spend a majority of his time in the practice of general surgery. We agree.
MCL 600.2169(1)(b) states that, in an action alleging medical malpractice, any person providing
expert testimony on the appropriate standard of care must have, “during the year immediately
preceding the date of the occurrence that is the basis for the claim or action, devoted a majority
of his or her professional time to either” the “active clinical practice” or the “instruction of
students” in “the same specialty” as the defendant physician. This Court has interpreted this
statute to mean that a proposed expert witness must “spend greater than 50 percent of his or her
professional time practicing the relevant specialty the year before the alleged malpractice.”
Kiefer v Markley, 283 Mich. App. 555, 559; 769 NW2d 271 (2009).
At his deposition, Green explained that he is board-certified in both general surgery and
colorectal surgery. The American Board of Medical Specialties lists general surgery and colon
and rectal surgery as two distinct specialties. Green explained that he split his time “50/50”
between the two specialties, and that the two specialties share professional skills. Nevertheless,
in Woodard, 476 Mich. at 560, our Supreme Court held that “a specialist can only devote a
majority of his professional time to one specialty.” As strictly interpreted, Green is disqualified
from offering expert testimony under MCL 600.2169(1) because he did not spend more than
50% of his professional time practicing the one most relevant specialty of general surgery.4
Therefore, the trial court abused its discretion by allowing Green’s standard of care testimony.
4
See Woodard, 476 Mich. at 577-579 (concluding that a proposed expert could not testify under
MCL 600.2169(1) despite the fact that he spent a majority of his time practicing a subspecialty
of the defendant’s most relevant specialty); see also Johnson v Bhimani, unpublished opinion per
curiam of the Court of Appeals, issued February 10, 2011 (Docket No. 292327).
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C. DR. MILEWSKI’S TESTIMONY
Defendants argue that the trial court abused its discretion by refusing to exclude
Milewski’s testimony because he improperly proposed a negligence per se standard of care and
because all of the factors in MCL 600.2955 weighed against the admissibility of his testimony.
“Generally, expert testimony is required in a malpractice case in order to establish the applicable
standard of care and to demonstrate that the professional breached that standard.” Sullivan v
Russell, 417 Mich. 398, 407; 338 NW2d 181 (1983). The proponent of expert testimony in a
medical malpractice case must establish that the expert is qualified under MRE 702,
MCL 600.2955, and MCL 600.2169. MRE 702 requires a trial court to determine that each
aspect of a proposed expert witness’s testimony, including the underlying principles and
methodology, is reliable. MRE 702 states the following:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Although not dispositive, a lack of supporting medical literature applies to the determination of
the admissibility of expert witness testimony. Edry v Adelman, 486 Mich. 634, 640; 786 NW2d
567 (2010). “Under MRE 702, it is generally not sufficient to simply point to an expert’s
experience and background to argue that the expert’s opinion is reliable and, therefore,
admissible.” Id. at 642.
MCL 600.2955 requires a trial court to decide whether an expert’s opinion is reliable and
will assist the fact-finder through an examination of the opinion and its basis. The trial court
must examine the facts, technique, method, and reasoning on which the expert relied using the
non-exhaustive following list of factors:
(a) Whether the opinion and its basis have been subjected to scientific
testing and replication.
(b) Whether the opinion and its basis have been subjected to peer review
publication.
(c) The existence and maintenance of generally accepted standards
governing the application and interpretation of a methodology or technique and
whether the opinion and its basis are consistent with those standards.
(d) The known or potential error rate of the opinion and its basis.
(e) The degree to which the opinion and its basis are generally accepted
within the relevant expert community. As used in this subdivision, “relevant
expert community” means individuals who are knowledgeable in the field of
study and are gainfully employed applying that knowledge on the free market.
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(f) Whether the basis for the opinion is reliable and whether experts in that
field would rely on the same basis to reach the type of opinion being proffered.
(g) Whether the opinion or methodology is relied upon by experts outside
of the context of litigation. [MCL 600.2955(1).]
Defendants first argue that Milewski imposed an improper standard of care by testifying
that all bile duct injuries during lap chole surgeries constitute malpractice. At his deposition, in
response to a question regarding whether a bile duct injury is a recognized risk of a lap chole,
Milewski testified: “Oh, I understand it’s recognized. I don’t believe that it’s acceptable.” The
following exchange also took place at Milewski’s deposition:
Q. Have you ever found a lap chole case where there was a bile duct
injury where malpractice was not committed?
A. No.
Q. Okay. You always believe that malpractice was committed?
A. Absolutely.
Q. Okay. Have you ever testified otherwise?
A. I have not.
Milewski conceded that injury to a bile duct is a recognized risk of the procedure. Reviewing his
testimony in context, however, he did not testify that it was impossible for a bile duct injury to
occur absent malpractice, or that such an injury amounted to negligence per se. Rather, his
testimony was that he had never reviewed a lap chole case in which a bile duct injury occurred
that was not the result of malpractice. Therefore, defendants misconstrue Milewski’s testimony
regarding the standard of care and the trial court did not abuse its discretion by refusing to
exclude his testimony on this ground.
Moreover, at his deposition, Milewski testified that Sabir breached the standard of care in
several respects beyond simply cutting the bile duct, which defendants do not address. Milewski
testified that the standard of care is “what a similarly trained surgeon would do under a similar
set of circumstances.” He believed that it was necessary to operate on plaintiff, and that Sabir
acted properly by beginning the operation laparoscopically. However, Milewski testified that
Sabir breached the standard of care by (1) failing to “conver[t] to an open operation when the
inflammation appeared as severe as it did,” (2) failing to “obtai[n] the critical view, that being
the identification of both the cystic duct and the cystic artery prior to clipping or cutting either
one of them,” (3) failing to recognize that the clip he chose “was not big enough to go across the
duct,” (4) using a GIA stapler in a critical area, and (5) attempting to repair the injury by
performing a Roux-en-Y procedure as opposed to sending plaintiff off for tertiary care or to a
hepatobiliary surgeon. In sum, defendants misconstrue Milewski’s testimony and then fail to
address his actual opinions regarding Sabir’s many breaches of the standard of care.
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Defendants argue that the trial court erred by finding that Milewski’s testimony was
reliable under the factors set forth in MCL 600.2955(1), and because there was no medical
literature supporting his opinion.5 However, each of defendants’ arguments concerning the trial
court’s application of the factors in MCL 600.2955(1) and the existence, or lack thereof, of
supporting literature is predicated on the erroneous belief that Milewski testified that every
incidence of bile duct injury occurring during a lap chole constitutes malpractice. As discussed
above, defendants misconstrue Milewski’s standard of care testimony. Accordingly, their
arguments are immaterial to the circumstances as presented and do not warrant appellate relief.6
Defendants next argue that Milewski’s testimony was inadmissible because it
irreconcilably conflicted with Green’s testimony. In particular, defendants contend that
Milewski testified that injury to the bile duct is always negligence, while Green stated that such
5
On this point, defendants argue that we should apply our Supreme Court’s recent decision in
Elher v Misra, 499 Mich. 11; 878 NW2d 790 (2016), a case involving a bile duct injury that
occurred during a lap chole, to conclude that Milewski’s testimony is inadmissible under
MRE 702 and MCL 600.2955. In Elher, 499 Mich. at 15, the plaintiff retained an expert who
testified that, absent extensive inflammation or scarring, it was always malpractice to injure the
common bile duct during a lap chole. The expert opined that, because the plaintiff in Elher did
not have inflammation or scarring, the defendant was negligent in cutting the common bile duct,
but he could not provide any supporting authority for his opinion. Id. Our Supreme Court
concluded that the testimony failed to meet the requirements of MRE 702 and MCL 600.2955
because the opinion “was based on [the expert’s] own beliefs, there was no evidence that [the]
opinion was generally accepted within the relevant community, there was no peer-reviewed
medical literature supporting [the] opinion, [the] plaintiff failed to provide any other support for
[the] opinion, and [the] defendants submitted contradictory peer-reviewed literature.” Id. at 28.
This case is readily distinguishable from Elher in that Sabir encountered significant
inflammation when he began the lap chole, Milewski did not testify that any injury to the bile
duct during the procedure constituted malpractice, and, as discussed in more detail below,
plaintiff presented peer-reviewed literature supporting Milewski’s testimony regarding the
standard of care.
6
Moreover, Milewski’s testimony regarding the standard of care was supported by medical
literature offered by plaintiff. To her response to defendants’ motion in limine, plaintiff attached
a peer-reviewed article indicating that the presence of “inflammation and scarring” during the
performance of a lap chole “have led to the concept of ‘Stop Rules’ for surgeons performing this
operation. In essence, if a safe dissection cannot be ensured laparoscopically, early conversion
to an open approach should be readily accepted as the proper course.” Afdhal et al,
Complications of Laparoscopic Cholecystectomy, UpToDate (January 30, 2014), pp 1-2. The
article further explained that if injury occurs during surgery, immediate repair of the injury
should only be attempted “if the surgeon is comfortable with advanced biliary surgery. If not,
the surgeon should obtain intraoperative consultation with a specialist who is skilled in this
problem.” Id. at 3. “Repair of biliary duct injuries should always be approached by an
experienced multidisciplinary team consisting of a surgeon, diagnostic radiologist, interventional
gastroenterologist, and an interventional radiologist.” Id.
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injury is not always the result of malpractice. Again, defendants misconstrue Milewski’s
testimony in this regard. Defendants further assert that the two experts disagree about whether it
was necessary to proceed with the lap chole on the night in question, and when the procedure
should have been converted from a laparoscopic to an open surgery. In Chapin v A & L Parts,
Inc, 274 Mich. App. 122, 127; 732 NW2d 578 (2007), this Court explained:
The facts that an opinion held by a properly qualified expert is not shared by all
others in the field or that there exists some conflicting evidence supporting and
opposing the opinion do not necessarily render the opinion “unreliable.” A trial
court does not abuse its discretion by nevertheless admitting the expert opinion, as
long as the opinion is rationally derived from a sound foundation.
Defendants have not presented any evidence suggesting that Milewski and Green based
their expert opinions on unsound principles, reasoning, or methodology. Both experts agree that
when Sabir encountered the severe inflammation inside of plaintiff, he should have converted
from a lap chole to an open procedure so he could see what he was doing and avoid cutting the
bile duct. The slight differences in Green’s and Milewski’s testimony do not suggest that their
opinions were unsound or unreliable. Therefore, the trial court did not abuse its discretion by
refusing to exclude the testimony on this basis.
Finally, defendants argue that Milewski should not be allowed to testify regarding the
propriety of Sabir performing the Roux-en-Y because he lacked the experience necessary to
provide any opinion on the procedure. Milewski did not criticize Sabir’s actual performance of
the failed Roux-en-Y, but rather argued that Sabir should not have attempted the procedure
because of his inadequate training and experience. Milewski was board-certified as a general
surgeon, the same specialty as Sabir at the time he performed the lap chole and Roux-en-Y
procedures on plaintiff. Although he did not profess to be an expert on performing a Roux-en-Y,
he stated that the procedure should only be attempted by a surgeon who had training and
experience in performing that procedure. Knowledge that the procedure was tricky and should
not be attempted by a novice was well within Milewski’s area of expertise, and was supported by
medical literature. Therefore, the trial court did not abuse its discretion by refusing to exclude
his testimony on this ground.
IV. MOTION FOR PARTIAL SUMMARY DISPOSITION
A. STANDARD OF REVIEW
We review a trial court’s decision regarding summary disposition de novo. Johnson v
Recca, 492 Mich. 169, 173; 821 NW2d 520 (2012). A motion under MCR 2.116(C)(10) tests the
factual sufficiency of the complaint. Joseph v Auto Club Ins Ass’n, 491 Mich. 200, 206; 815
NW2d 412 (2012). In evaluating a motion brought under MCR 2.116(C)(10), the reviewing
court considers affidavits, pleadings, depositions, admissions and other evidence of the parties in
the light most favorable to the nonmoving party. Id. “Summary disposition under MCR
2.116(C)(10) is appropriately granted if there is no genuine issue regarding any material fact and
the moving party is entitled to judgment as a matter of law.” Greene v A P Prod, Ltd, 475 Mich.
502, 507; 717 NW2d 855 (2006) (citation and quotation marks omitted).
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B. DISCUSSION
Defendants argue that the trial court erred by denying their motion for summary
disposition regarding plaintiff’s vicarious and direct liability claims against St. John and
Providence related to Sabir’s actions. We agree with defendants about plaintiff’s direct liability
claim, but conclude that the trial court properly denied their motion regarding vicarious liability.
1. ACTUAL AGENCY
Defendants first argue that Sabir was not an actual agent of the hospital because he was
an independent contractor. A hospital may be held vicariously liable for the negligence of its
agents, including physicians. Cox v Flint Bd of Hosp Managers, 467 Mich. 1, 11; 651 NW2d 356
(2002). However, “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 Gen Hosp, 404 Mich. 240, 250; 273 NW2d 429 (1978). An
independent contractor is “one who, carrying on an independent business, contracts to do work
without being subject to the right of control by the employer as to the method of work but only
as to the result to be accomplished.” Candelaria v BC Gen Contractors, Inc, 236 Mich. App. 67,
73; 600 NW2d 348 (1999) (citation and quotation marks omitted).
Defendants claim that Sabir was not an employee of the hospital because he was
employed by MRG, a distinct corporate entity. Defendants point out that Sabir testified that he
was on-call for Kolachalam, not the hospital, at the time he performed plaintiff’s surgery.
Additionally, defendants provided an affidavit of William E. Krueger, a senior claims analyst for
the hospital, in which he stated that Sabir was employed by MRG, rather than the hospital.
In response, plaintiff provided the testimony of Sabir, in which he stated that he believed
he was an employee of the hospital:
Q. Who were you employed by as of July of 2010?
A. St. John Providence.
Q. Okay. I saw a reference to—in the answers to an entity Medical
Resource Group?
A. Medical Resource Group is part of the hospital.
Q. Okay. So that is St. John Providence Assencion [sic] Health? . . . But
as far as your checks, basically said something other than Medical Resource
Group on them, do they not?
A. Yes. All I know is that when I signed my contract, it was with one of
the administrators, administrator for the hospital, I spoke to to get the contract, so
I know I answer only to the, you know, the administrators of the hospital. . . . I
want to say St. John Hospital at the end of the day is probably, you know, writes
me the checks.
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Plaintiff presented evidence that St. John is the sole member of MRG, and that as part of its
articles of incorporation, St. John reserved the right to “[a]pprove any managed care contractual
arrangement on behalf of the Corporation or any controlled corporations including, without
limitation, direct contracting arrangement with employee groups.” Because the record contains
competing evidence regarding Sabir’s employment status, the trial court did not err by denying
defendants’ motion for summary disposition on plaintiff’s actual agency claims.
2. OSTENSIBLE AGENCY
Next, defendants contend that no ostensible agency existed between Sabir and the
hospital because plaintiff had a preexisting relationship with a referring physician. A hospital
may be vicariously liable for negligent acts of its ostensible agents. Grewe, 404 Mich. at 250-
251. The proper inquiry is whether “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.” Id. An independent relationship between a
physician and a patient that preceded a patient’s admission to a hospital bars a finding of
ostensible agency. Zdrojewski v Murphy, 254 Mich. App. 50, 66; 657 NW2d 721 (2002).
At her deposition, plaintiff testified that, after two visits to the emergency room, she
spoke with Dr. Zoghlin over the phone and the doctor arranged for plaintiff to have an
ultrasound. There was no prescription, and plaintiff merely presented to a clinic for the test.
Over the phone, Zoghlin then told plaintiff to go to the hospital, and plaintiff went to Providence
Park Hospital. Plaintiff testified that she did not know if Zoghlin made any arrangements for her
to see a particular physician at the hospital. She just directed plaintiff to go to the hospital.
Defendants contend that plaintiff’s contact with Zoghlin was a preexisting physician-
patient relationship, and that Zoghlin referred plaintiff to Kolachalam, who was not the on-call
general surgeon for the hospital on the day of plaintiff’s surgery. Plaintiff asserted that she was
never “treated” by Zoghlin, and that whether Zoghlin referred plaintiff to Kolachalam was
irrelevant because plaintiff was treated by Sabir. Given this conflicting evidence, the trial court
did not err by concluding that a material, factual dispute existed regarding whether plaintiff had a
pre-existing relationship with a referring physician or merely sought treatment from the hospital.
Defendants claim that there can be no finding of ostensible agency because the hospital
did not hold Sabir out as its agent. In Chapa v St Mary’s Hosp of Saginaw, 192 Mich. App. 29,
33; 480 NW2d 590 (1991), this Court held that “[n]othing in Grewe indicates that a hospital is
liable for the malpractice of independent contractors merely because the patient ‘looked to’ the
hospital at the time of admission or even was treated briefly by an actual nonnegligent agent of
the hospital.” Rather, to prove ostensible agency, “(1) the person dealing with the agent must do
so with belief in the agent’s authority and this belief must be a reasonable one, (2) the belief
must be generated by some act or neglect on the part of the principal sought to be charged, and
(3) the person relying on the agent’s authority must not be guilty of negligence.” Id. at 33-34.
Defendants contend that the hospital did not identify Sabir as its agent. Defendants
presented plaintiff’s signed consent form, in which she acknowledged that “some of the
physicians who manage the care are independent physicians and not agents, representatives, or
employees of the facility.” Plaintiff contends that the hospital neglected to inform her that Sabir
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was not a staff doctor, which was sufficient to establish ostensible agency. Plaintiff explained
that she presented to the hospital as an emergency case and she did not present to a specific
physician. Plaintiff said she believed she was being treated by the hospital, and by admitting her,
the hospital represented that she would be treated. Given her pain and distress when she arrived,
plaintiff did not unreasonably fail to ask whether the individual doctor who treated her was an
employee of the hospital or an independent contractor. See Grewe, 404 Mich. at 253. Under the
circumstances, plaintiff could have reasonably believed that defendant Sabir was an employee of
the hospital. Accordingly, the trial court did not err by denying defendants’ motion for summary
disposition on plaintiff’s ostensible agency claim.
3. DIRECT LIABILITY
Finally, defendants argue that there was no testimony to support plaintiff’s claim of direct
liability in this case. A hospital may be directly liable for malpractice through claims of
negligence in supervision of staff physicians in addition to selection and retention of medical
staff. Cox, 467 Mich. at 11. Although plaintiff brought a claim of direct liability against the
hospital, her allegations pertain only to the actions or omissions of the physicians, and she failed
to provide any legal authority in support of her claim. Without properly asserting her claim or
providing substantiating authority, the trial court should have granted defendants’ motion for
summary disposition on this claim.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No costs pursuant to MCR 7.219, neither party
having prevailed in full.
/s/ Michael F. Gadola
/s/ Deborah A. Servitto
/s/ Douglas B. Shapiro
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