P Kathy Placido v. Abdelkader Hawasli Md ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KATHY PLACIDO, UNPUBLISHED
June 1, 2023
Plaintiff-Appellee,
v No. 359890
Wayne Circuit Court
ABDELKADER HAWASLI, M.D. and HAWASLI LC No. 20-003376-NH
AND ASSOCIATES SURGICAL SPECIALISTS,
P.C., doing business as ASCENSION MEDICAL
GROUP MICHIGAN,
Defendants,
and
ASCENSION MEDICAL GROUP MICHIGAN,
doing business as ASCENSION MEDICAL
GROUP, and ASCENSION ST. JOHN HOSPITAL,
doing business as ST. JOHN HOSPITAL AND
MEDICAL CENTER,
Defendants-Appellants.
Before: RICK, P.J., and SHAPIRO and LETICA, JJ.
LETICA, J. (concurring in part and dissenting in part).
I agree with the majority that the trial court erred in denying the motion for summary
disposition brought by defendant Ascension St. John Hospital, doing business as St. John Hospital
and Medical Center (“St. John Hospital”), warranting reversal and remand for entry of an order
granting the dispositive motion. However, I would further conclude that the trial court erred in
denying the motion for summary disposition brought by defendant Ascension Medical Group
Michigan, doing business as Ascension Medical Group (“Ascension”). Because the majority holds
to the contrary, I respectfully dissent on that issue. Additionally, I dissent from the majority’s
conclusion that plaintiff appropriately raised a claim of ordinary negligence pertaining to the
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removal of her thyroid. Consequently, I would reverse the trial court’s denial of summary
disposition and grant summary disposition in favor of these defendants.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff filed a complaint, alleging that she was a 56-year-old female with a history of
parathyroidectomy and previously had parathyroid glands surgically removed. She asserted that
she had a scan and other imaging in late 2018, indicating that she had multiple bilateral thyroid
nodules. In January 2019, plaintiff consented to have surgery performed by defendant
Dr. Abdelkader Hawasli, but claimed that she only agreed to “minimally invasive right inferior
parathyroidectomy rapid path nuclear probe.” Additionally, plaintiff alleged that she was adamant
that her thyroid not be removed because of her occupation1 and at the recommendation of an ear,
nose and throat doctor. Despite her instructions, she claimed that Dr. Hawasli performed a total
thyroidectomy. After the surgery, plaintiff asserted that she could not drink, had difficulty
breathing, and could barely speak. Plaintiff sued, alleging “medical malpractice/negligence/gross
negligence” against Dr. Hawasli in count I and claims against Hawasli & Associates Surgical
Specialists, P.C., doing business as Eastside Surgical Associates, in count II.
Pertinent to this appeal, in count III, plaintiff raised the claim of “medical
malpractice/negligence/gross negligence” against Ascension. Specifically, she asserted that
Ascension was responsible for all phases of the operation of a general surgery facility that included
selection of the medical staff and the quality of care rendered by its ostensible agents or employees,
including Dr. Hawasli. Additionally, Ascension was required “to provide care and treatment
consistent with that of a reasonable and prudent general surgery facility.” Despite having a direct
duty to plaintiff, plaintiff alleged that Ascension was “negligent” for failing to provide proper
medical care, failing to employ hospital staff with the degree of skill and learning for the locality,
failing to “supervise, direct, monitor and control” the healthcare providers, failing to adopt rules
and regulations to ensure the healthcare professionals had adequate experience and expertise, and
other acts “of professional negligence yet to be determined.” Plaintiff claimed that those breaches
of the standard of care were the proximate cause of her injury; specifically, undergoing an
unnecessary total thyroidectomy to which she did not consent and causing her to suffer nerve
damage. Ascension was allegedly responsible for plaintiff’s psychological and economic damages
through vicarious liability or respondeat superior. In count IV, plaintiff reiterated these same
duties, breach, and theories against St. John Hospital, the site of the surgery.
Three separate motions for summary disposition were filed. St. John Hospital moved for
summary disposition under MCR 2.116(C)(10). In its motion, St. John Hospital alleged that
plaintiff filed a medical malpractice action against it arising from Dr. Hawasli’s performance of
neck surgery for the removal of parathyroid and thyroid tissue. Plaintiff alleged that St. John
Hospital was vicariously liable for the alleged negligence by Dr. Hawasli, and that St. John
Hospital was negligent in its policies, procedures, and privileges issued to the doctor that
performed her surgery. Nevertheless, St. John Hospital contended that plaintiff failed to support
1
Plaintiff testified that she worked as a dealer at a casino and used her voice in her work.
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these claims with expert testimony because her expert did not criticize its policies, procedures, or
credentialing.
St. John Hospital also contended that it could not be vicariously liable for any alleged
negligence by Dr. Hawasli because he was not an employee at the time of the surgery and there
was no contract or facts to establish that he was an employee or ostensible agent of St. John
Hospital. Rather, plaintiff looked to Dr. Hawasli for treatment in light of their existing physician-
patient relationship established at his private office long before the surgery occurred. St. John
Hospital also asserted that plaintiff could not demonstrate ostensible agency between it and
Dr. Hawasli when it made no representation to plaintiff and merely served as the site for the
surgery. Because Dr. Hawasli was not an employee of St. John Hospital and plaintiff could not
establish an ostensible agency, St. John Hospital submitted that it was entitled to summary
disposition.
Plaintiff opposed St. John Hospital’s dispositive motion and alleged that it was vicariously
liable for Dr. Hawasli’s negligent removal of plaintiff’s thyroid because it occurred without her
consent. Specifically, plaintiff alleged that she could pursue an agency claim because St. John
Hospital entered into an employment contract, the Professional Services Agreement (PSA), with
Dr. Hawasli, thereby making him an employee and agent of the hospital. Plaintiff submitted that
the question of agency presented an issue for the jury to determine.2 Moreover, through the PSA,
“Ascension” retained considerable control “over Dr. Hawasli’s duties and how care was provided”
because all patient records belonged to Ascension, Dr. Hawasli’s clinic was promoted as part of
the St. John network, the clinic physicians could only provide services set forth in the agreement,
all clinic fees were billed by Ascension, and Dr. Hawasli’s clinic rent, salary, and liability
insurance were paid by Ascension. Plaintiff relied on the PSA as demonstrating significant control
retained by “Ascension” over Dr. Hawasli and his clinic. This control by Ascension purportedly
created a genuine issue over whether Dr. Hawasli was an actual agent of St. John Hospital and any
vicarious liability as a result. Therefore, summary disposition was inappropriate.
In a written order, the trial court denied the motion, stating “St[.] John [Hospital] had an
employment contract with Dr Hawasli[.]”
Ascension also moved for summary disposition under MCR 2.116(C)(10). Similar to St.
John Hospital’s dispositive motion, Ascension alleged that it was not a party to any contract with
Dr. Hawasli that would establish an employer-employee relationship. Ascension further alleged
that Dr. Hawasli could not be its actual agent because it did not control Dr. Hawasli’s medical care
and decisions. It contended that there was no evidence that plaintiff looked to anyone other than
Dr. Hawasli for treatment, and there was no evidence that Ascension made plaintiff believe that
there was an ostensible agency relationship. Therefore, plaintiff’s claim failed.
Plaintiff opposed Ascension’s dispositive motion, alleging that the jury could conclude that
Dr. Hawasli was an actual agent of Ascension, citing the PSA and maintaining that questions of
2
In her response to the motion for summary disposition filed by St. John Hospital, plaintiff
repeatedly referred to “Ascension” and did not distinguish between the two entities.
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fact existed. Plaintiff alleged that the PSA gave Ascension control over Dr. Hawasli that raised
factual issues regarding ostensible and actual agency.
In a written order, the trial court denied Ascension’s dispositive motion without hearing
oral argument. The order simply stated that, “Dr[.] Hawasli was an employee of St[.] John by
contract[.]”
Finally, both Ascension and St. John Hospital moved for partial summary disposition of
the claims of ordinary and gross negligence under MCR 2.116(C)(10). Plaintiff contended medical
malpractice was committed during the performance of neck surgery to remove parathyroid and
thyroid tissue. Despite this medical malpractice claim, plaintiff also asserted actions for
negligence and gross negligence arising out of the surgery. Because plaintiff’s claims sounded in
medical malpractice, the claims of negligence and gross negligence pertaining to both defendants
allegedly warranted dismissal.
Again, plaintiff opposed the motion to dismiss these negligence claims. Plaintiff submitted
that negligence and gross negligence were premised on Dr. Hawasli’s removal of her thyroid
against her wishes and without her consent. Under the doctrine of informed consent, Dr. Hawasli
was required to advise plaintiff of the risks and consequences of a medical procedure. This
omission purportedly supported a finding of gross negligence “on the part of Defendant Hawasli
for removing Plaintiff’s thyroid without her consent.” And, any removal of the thyroid without
plaintiff’s consent constituted a battery. Plaintiff submitted that an intentional act did not qualify
as medical malpractice. Thus, she claimed there were material factual issues regarding negligence
and gross negligence for the jury to determine.
The trial court denied this dispositive motion without hearing oral argument. Unlike the
other two dispositive motions, the order contained no brief explanation for the ruling. St. John
Hospital and Ascension appealed these rulings.
II. STANDARD OF REVIEW
A trial court’s decision on a motion for summary disposition is reviewed de novo. Batista
v Office of Retirement Servs, 338 Mich App 340, 354; 980 NW2d 107 (2021). A motion for
summary disposition premised on MCR 2.116(C)(10) tests the factual sufficiency of the complaint.
Charter Twp of Pittsfield v Washtenaw Co Treasurer, 338 Mich App 440, 449; 980 NW2d 119(2021). The moving party must identify and support the issues to which the moving party believes
there is no genuine issue of material fact, and the affidavits, pleadings, depositions, admissions,
and other documentary evidence submitted with the motion must be examined. Id. Once the
moving party makes and supports its motion, the opposing party may not rest on mere allegations
or denials in the pleadings, but must submit documentary evidence setting forth specific facts to
demonstrate a genuine issue for trial. Id.III. APPLICABLE LAW
In a general employment relationship, the employer or master is responsible for the
wrongful acts of his employee or servant committed during the performance of a duty within the
scope of his employment. Rogers v JB Hunt Transp, 466 Mich 645, 650-651; 649 NW2d 23(2002). “An employer is not vicariously liable for acts committed by its employees outside the
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scope of employment, because the employee is not acting for the employer or under the employer’s
control.” Id. at 651. The employer of an independent contractor is not liable for the contractor’s
negligence because the employer does not control the independent contractor, and therefore, the
employer should not be held vicariously liable for actions outside of his control. St Clair v XPO
Logistics, Inc, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 356968), slip op at 10,
lv pending. However, when an employer retains control over an independent contractor, the
employer may be liable in negligence. Id.The test for whether a worker is an independent contractor or an employee
is whether the worker has control over the method of his or her work: If the
employer of a person or business ostensibly labeled an independent contractor
retains control over the method of the work, there is in fact no contractee-contractor
relationship, and the employer may be vicariously liable under the principles of
master and servant. [Campbell v Kovich, 273 Mich App 227, 234; 731 NW2d 112(2006) (citations and punctuation omitted).]
But even when an employer-employee relationship is lacking, vicarious liability may exist through
agency. Laster v Henry Ford Health Sys, 316 Mich App 726, 735; 892 NW2d 442 (2016). And
the labels that the parties use to define the relationship are not dispositive. Id. at 736.
In a medical malpractice action, the plaintiff must prove the applicable standard of care,
breach of that standard by the defendant, injury, and proximate cause between the alleged breach
and the injury. Cox v Bd of Hosp Managers, 467 Mich 1, 10; 651 NW2d 356 (2002); Benigni v
Alsawah, ___ Mich App ___, ___: ___ NW2d ___ (2022) (Docket No. 357033), slip op at 6. In
examining a claim of medical malpractice, it is crucial to determine whether the claim of negligent
acts arose in the course of a professional relationship. Cox, 467 Mich at 10-11. When a plaintiff
fails to raise a claim of direct negligence by the defendant hospital, any liability must be premised
on a theory of vicarious liability. Id. at 11.
Vicarious liability is “indirect responsibility imposed by operation of
law.” . . . As [our Supreme Court] stated in 1871:
[T]he master is bound to keep his servants within their proper
bounds, and is responsible if he does not. The law contemplates that
their acts are his acts, and that he is constructively present at them
all. [Smith v Webster, 23 Mich 298, 299-300 (1871) (emphasis
added).]
In other words, the principal “is only liable because the law creates a
practical identity with his [agents], so that he is held to have done what they have
done. Id. at 300. See also Ducre v Sparrow-Kroll Lumber Co, 168 Mich 49, 52;
133 NW 938 (1911).
Applying this analysis, [a] defendant hospital can be held vicariously liable
for the negligence of its employees and agents only. [Cox, 467 Mich at 11-12(emphasis in original).]
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Thus, the foundation of vicarious liability is that the principal is liable because the law creates a
practical identity with his agents such that the principal is held responsible for the acts of the agent.
Potter v McLeary, 484 Mich 397, 424-425; 774 NW2d 1 (2009). When liability is premised on
vicarious liability, the professional entity and the licensed health provider are considered the same
actor. Id.“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 Gen Hosp, 404 Mich 240, 250; 273 NW2d 429 (1978); see
also Vanstelle v Macaskill, 255 Mich App 1, 8; 662 NW2d 41 (2003). 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 omitted.). “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.” Grewe, 404
Mich at 250-251. Indeed, an agency may be actual or ostensible, see e.g., Strach v St John Hosp
Corp, 160 Mich App 251, 282-283; 408 NW2d 441 (1987).
In Grewe, our Supreme Court examined how to determine whether an agency relationship
existed, stating:
In our view, the critical question is whether the plaintiff, at the time of his
admission to the hospital, was looking to the hospital for treatment of his physical
ailments or merely viewed the hospital as the situs where his physician would treat
him for his problems. A relevant factor in this determination involves resolution
of the question of whether the hospital provided the plaintiff with [the treating
doctor] or whether the plaintiff and [the treating doctor] had a patient-physician
relationship independent of the hospital setting. [Grewe, 404 Mich at 251.]
Our Supreme Court acknowledged that hospitals may engage in independent contractor
relationships with their employees, but a plaintiff does not look to the control in that relationship.
Instead, the Grewe Court adopted the following test, stating:
The relationship between a given physician and a hospital may well be that
of an independent contractor performing services for, but not subject to, the direct
control of the hospital. However, that is not of critical importance to the patient
who is the ultimate victim of that physician’s malpractice . . .
An 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. In this connection
it is urged by appellant that before a recovery can be had against a
principal for the alleged acts of an ostensible agent, three things
must be proved, to wit . . . [First, t]he person dealing with the agent
must do so with belief in the agent’s authority and this belief must
be a reasonable one; [second] such belief must be generated by some
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act or neglect of the principal sought to be charged; [third] and the
third person relying on the agent’s apparent authority must not be
guilty of negligence. [Grewe, 404 Mich at 252-253 (citations and
quotations omitted).]
In Grewe, the plaintiff went to the hospital to obtain treatment for a separated shoulder.
The plaintiff testified that he went to and expected to be treated by the hospital, and there was no
evidence that the treating doctor was an independent contractor instead of a hospital employee. Id.
at 253-254. Specifically, the plaintiff testified that when he entered the hospital, it was to obtain
treatment from the hospital itself. He had no preexisting patient-physician relationship with any
of the medical personnel who treated him at the hospital. Even the doctors that treated the plaintiff
at the hospital testified that their treatment arose from the plaintiff’s presentation at the hospital;
the emergency room doctor examined the plaintiff and then the plaintiff was referred to other
doctors at the hospital. Id. at 255-256. In light of the evidence, the Grewe Court determined that
the jury verdict against the defendant hospital was supported by the evidence because the plaintiff
looked to the defendant hospital for treatment and “was treated by medical personnel who were
the ostensible agents of [the] defendant hospital.” Id. at 255.
IV. THE PSA AND ST. JOHN HOSPITAL
St. John Hospital contends that the PSA addressed administrative services and does not
establish sufficient control to impose an employment or agency relationship, and in turn, liability
upon it for the actions of Dr. Hawasli.3 I agree.
3
To avoid liability, St. John Hospital also submitted that it was not a party to the contract, and
therefore, could not be bound by its terms. The PSA provided that it was executed on March 17,
2014, and it was to take effect on May 1, 2014. The parties to the PSA were identified as “Medical
Resources Group” (MRG) which was characterized as “a member of St. John Providence Health
System,” and Hawasli and Associates Surgical Specialist, P.C. Dr. Hawasli, individually was not
a party to the agreement. On March 1, 2018, there was a second amendment to the PSA executed
between “St. John Hospital and Medical Center” and Hawasli and Associates Surgical Specialists,
P.C. Although St. John Hospital concludes that it was not a party to the PSA and that its corporate
entity must be respected, it was required to make and support its motion for summary disposition
with documentary evidence. Charter Twp of Pittsfield, 338 Mich App at 449. St. John Hospital
did not present documentary evidence addressing the various corporate structures and members or
present an affidavit addressing its relationship or affiliation to MRG, if any. Nonetheless, an
employer-employee relationship is contingent on control. As noted, the test of whether a worker
is an independent contractor or an employee is contingent upon whether the worker has control
over the method of his work. Campbell, 273 Mich App at 234. Because the key evaluation of the
relationship is the exercise of control, the lack of certainty pertaining to the corporate membership
between MRG and St. John Hospital does not preclude summary disposition. Even if it was
assumed that St. John Hospital was a party to the PSA, the PSA and Dr. Hawasli’s testimony
delineated the level of control over the work and served as the foundation for determining whether
there was an employee or independent contractor relationship. The assumption of which entity is
a party to the agreement has no bearing on control.
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Here, the parties dispute whether an employee-employer relationship is present under the
PSA and whether it governs liability. The rules of contract construction provide:
The essential elements of a contract are parties competent to contract, a
proper subject matter, legal consideration, mutuality of agreement, and mutuality
of obligation. Mallory v City of Detroit, 181 Mich App 121, 127; 449 NW2d 115(1989). Issues regarding the proper interpretation of a contract or the legal effect
of a contractual clause are reviewed de novo. Fodale v Waste Mgt of Mich, Inc,
271 Mich App 11, 16-17; 718 NW2d 827 (2006). When interpreting a contract, the
examining court must ascertain the intent of the parties by evaluating the language
of the contract in accordance with its plain and ordinary meaning. In re Egbert R
Smith Trust, 480 Mich 19, 24; 745 NW2d 754 (2008). If the language of the
contract is clear and unambiguous, it must be enforced as written. Id. A contract
is unambiguous, even if inartfully worded or clumsily arranged, when it fairly
admits of but one interpretation. Holmes v Holmes, 281 Mich App 575, 594; 760
NW2d 300 (2008). Every word, phrase, and clause in a contract must be given
effect and contract interpretation that would render any part of the contract
surplusage or nugatory must be avoided. Woodington v Shookoohi, 288 Mich App
352, 374; 792 NW2d 63 (2010). [McCoig Materials, LLC v Galui Constr, Inc, 295
Mich App 684, 694; 818 NW2d 410 (2012).]
The PSA provided that Medical Resource Group (MRG) operated various physician clinics
and sought to retain the services of physicians to staff the clinics. Therefore, the professional
corporation of Hawasli and Associates Surgical Specialists, P.C. was retained to provide the
physicians to staff the MRG clinic. The agreement provided that “[p]hysicians shall administer to
the medical needs of each patient who seeks Services at the Clinic and who is reasonably
determined by the Physicians to be in need of such Services, all as reasonably determined by the
Physicians in the Physician’s professional judgment.” The PSA expressed that Clinic patients
would receive healthcare services not only at the Clinic but also at St. John Providence Health
System. Yet, the clinic physicians were entitled to refer patients to other facilities if the patient
expressed a preference, if the insurance designated the provider, or if it was in the best interest of
the patient in light of the physician’s medical judgment. PSA, Section 1.2.
The physicians that treated patients at the clinic had to comply with state licensing
requirements and be board-certified. PSA, Section 1.4. The physicians had to abide by the policies
and procedures of MRG, and the operating budget, non-physician staffing, and equipment were
provided by MRG although there was provision for consultation with the PC. PSA, Sections 1.5,
2.2, 2.3, and 2.4. The medical records were the property of MRG. PSA, Section 2.5. The Clinic
was operated under the assumed name of “Hawasli & Associates Surgical Specialists” but the
clinic was promoted as part of the St. John Providence Physician Network. PSA, Section 2.6.
MRG was responsible for billings. PSA, Section 3. The professional liability insurance was paid
for by MRG. PSA, Section 6.2. The PSA defined the physicians staffing the Clinic as independent
contractors:
6.1 Independent Contractor Status.
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6.1.1 In performing Services pursuant to this Agreement PC and
Physician are at all times acting as independent contractors. Nothing in this
Agreement is intended to create an employer/employee relationship or a joint
venture relationship between said parties and MRG.
6.1.2 Except as provided herein, PC reserves to itself the exclusive right
to designate the hours, duties and work assignments of Physician. Nothing in this
Agreement is intended to allow MRG to exercise control or direction over the
manner or method by which PC and Physician perform the Services which are the
subject of this Agreement. PC shall perform its work and functions in a manner
consistent with the standard of care of what a reasonably prudent health care
professional in the field of general surgery would do in like or similar
circumstances.
6.1.3 PC understands and agrees that (1) no Physician will be treated as
an employee of MRG for federal tax purposes; (2) MRG will not withhold on behalf
of any Physician any sums for income tax, unemployment insurance, social
security, or any other withholding or make available to the Physicians any benefits
afforded to MRG employees (including pension, workers’ compensation, health
insurance or other similar benefits); and (3) all such payment, withholding and
benefits are the sole responsibility of PC or Physician.
The label of independent contractor used in the PSA is not dispositive. Laster, 316 Mich
App at 736. Nonetheless, when the control exercised over Dr. Hawasli is examined, it is apparent
that there was no employer-employee relationship. That is, the PSA provided that Dr. Hawasli’s
corporate entity, Hawasli and Associates Surgical Specialists, P.C., was to provide physicians to
staff the Clinic operated by Ascension. This agreement stated that MRG would provide the office
space, the staff, and the equipment necessary to run a medical practice. In turn, Dr. Hawasli’s
corporate entity was to furnish staff physicians. The staff physicians were referred to as
independent contractors, federal taxes were not deducted from their compensation, they were not
entitled to other employment benefits, and their medical treatment of patients was not subject to
MRG’s scrutiny.
In Laster, the plaintiff was treated at the defendant hospital by Dr. Lim. Dr. Lim was not
on the hospital payroll, but worked at a surgical entity that had staff privileges at the defendant
hospital. The plaintiff, although acknowledging that Dr. Lim was characterized as an independent
contractor, contended that the defendant hospital should be vicariously liable for Dr. Lim’s medical
malpractice because of the defendant hospital’s extensive on-call requirements that allegedly
constituted sufficient control to impose liability. The trial court found that there were factual issues
regarding vicarious liability because of the degree of control exercised by the defendant hospital.
Laster, 316 Mich App at 729-733. On appeal, this Court reversed, stating:
Our review of the record suggests that Dr. Lim is clearly an independent contractor
because Henry Ford did not control the manner or method used by on-call doctors,
like Dr. Lim, to diagnose or treat their patients.
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Henry Ford had very little control over Dr. Lim, and no “control over the
method of his . . . work.” His on-call responsibilities notwithstanding, Dr. Lim was
generally free to see as many or as few patients as he desired, he could generally
select his own patients, he did not and was not required to use the administrative
machinery of the hospital to bill patients, and he was part of an entirely separate
practice with its own staff and employees. Also, the hospital never paid Dr. Lim
for his services, and he was free to obtain privileges at other hospitals. The mere
fact that a physician is required to maintain privileges at a hospital and undertake
on-call responsibilities is not sufficient under Michigan law to constitute control
over the physician’s professional practice of medicine.
The trial court relied on select provisions of the on-call agreement when it
found that a question of fact existed regarding whether Dr. Lim was an actual agent
of Henry Ford. . . . Notably, none of the [on-call requirements] addresses, much
less controls, how Dr. Lim is to diagnose patients or how he is to perform surgery
while at Henry Ford. The fact that defendants may have required some logistical
and quality-assurance measures does not rise to the level of “control over the
method of [Dr. Lim’s] work especially when the work that is alleged to have been
negligently performed is not addressed by the on-call agreement. [Id. at 737-738
(citations omitted).]
In his deposition, Dr. Hawasli testified that he became an employee of Ascension in
December 2019, long after plaintiff’s surgery occurred in January 2019. Before this employment
contract, Dr. Hawasli was subject to the PSA between February 2014 and March 2019. In the
PSA, Dr. Hawasli’s corporate entity, Hawasli and Associates Surgical Specialists, P.C., agreed to
provide physicians to Ascension at their clinics and hospitals. Under the PSA, Dr. Hawasli
maintained his liability insurance for which he was reimbursed, he was entitled to monthly draws
and advances, some operating expenses of his PC were reimbursed, and he received “extras” for
exceeding production levels. Dr. Hawasli was subject to a non-compete agreement pertaining to
the performance of administrative or director jobs at other local hospitals. Including his residency,
Dr. Hawasli was a staff physician with “Ascension St. John” for 40 years.
Dr. Hawasli testified that at the time of plaintiff’s surgery, he was employed by his own
private practice, Hawasli and Associates Surgical Specialists, P.C., and he was not employed by
“Ascension St. John Hospital” or “Ascension Medical Group.” Additionally, he claimed to discuss
with plaintiff the risks and complications associated with her surgery, but he did not confer with
other hospital staff or employees regarding the risks and complications. Rather, Dr. Hawasli
exercised his own training, education, and experience in performing plaintiff’s surgery; he used
his own medical judgment to make decisions about the extent of the procedure. Additionally,
Dr. Hawasli had an existing relationship with plaintiff at his private office outside of the hospital.
St. John Hospital and Ascension did not exercise any control during plaintiff’s surgery. And, when
performing a surgery, Dr. Hawasli was not governed by a contract, policy, or procedure, but
performed in accordance with his training and experience.
In light of Dr. Hawasli’s testimony and the terms of the PSA, there is no indication that an
employer-employee relationship existed between St. John Hospital and Dr. Hawasli. Even if it is
assumed that St. John Hospital was a party to the contract, the contract provided that Dr. Hawasli
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was an independent contractor, and he was paid accordingly without any taxation or deductions.
Although the PSA provided that employees, rent, and insurance were supplied by MRG, there was
no indication that medical judgment was controlled by the PSA. Dr. Hawasli confirmed in his
deposition testimony that his surgeries were not supervised and that he exercised his own
judgment, explaining the risks and complications to his patients, not to other hospital staff or
employees. Thus, regardless of the parties to the PSA and the characterization of the relationship,
the record evidence did not reflect that an employer-employee relationship existed between St.
John Hospital and Dr. Hawasli. See Laster, 316 Mich App at 736-737. “[N]ot just any type of
control will suffice to transform an independent contractor into an employee or agent; rather, the
control must relate to the method of the work being done.” Laster, 316 Mich App at 736. Although
the PSA demonstrated that MRG controlled the administrative functions of the operation of the
clinic by providing employees, rental space, and equipment, no corporate entity, such as Ascension
or St. John Hospital controlled the manner of the work performed. Specifically, these entities did
not supervise or control the surgeries or treatment between Dr. Hawasli and his patients. Because
an employer-employee relationship did not exist between St. John Hospital and Dr. Hawasli, the
issue becomes whether liability may attach vicariously through agency in light of the Grewe
decision.
As previously discussed, our Supreme Court examined vicarious liability and adopted a
test for imposing liability:
An 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. In this connection it is urged by appellant that before a recovery
can be had against a principal for the alleged acts of an ostensible agent, three things
must be proved, to wit . . . [First, t]he person dealing with the agent must do so
with belief in the agent’s authority and this belief must be a reasonable one;
[second] such belief must be generated by some act or neglect of the principal
sought to be charged; [third] and the third person relying on the agent’s apparent
authority must not be guilty of negligence. [Grewe, 404 Mich at 252-253 (citations
and quotations omitted, emphasis added).]
Again, the Grewe plaintiff went to the hospital to obtain treatment for a separated shoulder,
choosing the hospital where he did not have a treating doctor. There was no evidence that the
plaintiff was given any information regarding the treating doctor and whether he was an
independent contractor or a hospital employee. Id. at 253-254. Specifically, the plaintiff testified
that when he entered the hospital, it was to obtain treatment from the hospital itself. He had no
preexisting patient-physician relationship with any of the medical personnel who treated him at
the hospital. Even the doctors that treated the plaintiff at the hospital testified that their treatment
arose from the plaintiff’s presentation at the hospital. More specifically, the emergency room
doctor examined the plaintiff, and then the plaintiff was referred to other doctors at the hospital.
Under these circumstances, the Grewe Court determined that the jury verdict against the defendant
hospital was supported by the evidence because the plaintiff looked to the defendant hospital for
treatment and “was treated by medical personnel who were the ostensible agents of [the] defendant
hospital.” Id. at 254-255.
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In the present case, however, there is no evidence that plaintiff selected St. John Hospital
or that St. John Hospital made any representations to her regarding Dr. Hawasli’s employment
status. To the contrary, plaintiff testified that she had a longstanding history with Dr. Hawasli.
Her first surgery was for “parathyroid,” and it occurred “years ago.” After this first surgery, Dr.
Hawasli performed a second parathyroid surgery, hemorrhoid surgery, a “laparoscopic Nissen
fundoplication,” and gallbladder removal upon plaintiff. Although plaintiff could not recall when
she began her treatment with Dr. Hawasli, he testified that the treatment commenced in 2007.
Thus, plaintiff had a long-term treatment relationship with Dr. Hawasli. She did not testify
where the other surgeries occurred or that St. John Hospital made a representation to her or led her
to believe that an agency relationship existed between the hospital and Dr. Hawasli. Applying
Grewe, there is no indication that St. John Hospital, as the principal, intentionally led plaintiff to
believe that Dr. Hawasli was its agent. Additionally, plaintiff did not identify any statement by
Dr. Hawasli of an agency relationship that was reinforced by St. John Hospital. There is no
indication that St. John Hospital served as anything other than the site of plaintiff’s surgery. In
light of the failure to show a reasonable belief on plaintiff’s part, I agree that the trial court erred
in denying St. John Hospital’s motion for summary disposition.4
V. THE PSA AND ASCENSION
Ascension also contends that the trial court erred in denying its motion for summary
disposition and in its conclusion regarding employment status. For the reasons articulated in
section IV, I agree.
A defendant is generally liable for his own acts of negligence and not the acts of others.
Laster, 316 Mich App at 734. Under respondeat superior, an employer may be liable for the
negligence of employees acting within the scope of his employment. Id. When an employer-
employee relationship is lacking, however, vicarious liability may attach through agency. Id.
at 735.
In the present case, Dr. Hawasli’s professional corporation entered into the PSA to provide
physicians to staff a clinic and provide surgical services. In the PSA, the corporate entity, MRG,
an alleged affiliate of St. John Hospital and Ascension, set forth a multitude of administrative
functions that it would perform in the operation of the clinics. The agreement characterized the
physicians as independent contractors and paid them accordingly, by failing to withdraw
applicable taxes and provide other benefits such as retirement accounts. And, irrespective of the
label set forth in the contract, Dr. Hawasli testified that his relationship was that of an independent
4
I note that plaintiff submitted that the question of agency always presented a question of fact, and
therefore, the trial court could not grant summary disposition. But, the issue of agency becomes a
question of fact when there is a disputed question and direct or inference testimony tends to
establish it. St Clair Intermediate Sch Dist v Intermediate Ed Ass’n, 458 Mich 540, 556; 581
NW2d 707 (1988). In this case, plaintiff acknowledged that she had a surgical history with
Dr. Hawasli and failed to present evidence that St. John Hospital served as anything other than the
site of the operation. Therefore, I conclude that there was no genuine issue of material fact, and
summary disposition was appropriate.
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contractor. That is, his treatment and surgeries of patients were not controlled or supervised by
those entities, and instead, he autonomously exercised medical judgment. To transform an
independent contractor into an employee, the control must relate to the method of the work being
done. Laster, 316 Mich App at 736. Dr. Hawasli was contracted to treat patients as a surgeon.
Although his staffing, office space, and billing may have been managed by MRG, the method of
the work to be done, Dr. Hawasli’s surgical treatment of patients, was not controlled by MRG.
Accordingly, in my view, the trial court erred in concluding that the PSA gave rise to an
employment arrangement that precluded summary disposition. In fact, plaintiff had a relationship
with Dr. Hawasli dating back to 2007, before the execution of the PSA, and she failed to present
evidence that any representations by Ascension caused it to be vicariously liable for Dr. Hawasli’s
alleged medical malpractice. Therefore, I would conclude that summary disposition was also
appropriate in favor of Ascension.
VI. NEGLIGENCE
Finally, Ascension and St. John Hospital submit that the trial court erred in denying partial
summary disposition of the claims of negligence and gross negligence. I again agree.
“Whether a claim sounds in ordinary negligence or medical malpractice is a question of
law that is reviewed de novo.” Trowell v Providence Hosp & Med Ctrs, Inc, 502 Mich 509, 517;
918 NW2d 645 (2018). The court disregards the labels given to the claims but reads the complaint
as a whole and seeks the gravamen of the claims. Id. at 519. An examination of the claim must
occur to determine whether it raises questions of medical judgment requiring expert testimony or,
on the other hand, whether it alleges facts within the realm of a jury’s common knowledge and
experience. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 423; 684 NW2d 864 (2004).
When the reasonableness of a healthcare professional’s action may be analyzed by lay jurors in
light of their common knowledge and experience, the claim is for ordinary negligence. Id. But, if
the reasonableness of the healthcare professional’s action can be determined by a jury only after
having been presented with the standards of care as explained by experts, a medical malpractice
claim is involved. Id.Plaintiff claimed that Dr. Hawasli exceeded her consent to parathyroid surgery and
committed an assault and battery upon her by removing her thyroid, an issue for analysis by lay
jurors. In doing so, plaintiff abandoned any claim pertaining to other failures such as to train or
supervise and did not mention any acts or omissions by Ascension and St. John Hospital with
regard to Dr. Hawasli. However, Dr. Hawasli testified that plaintiff’s symptoms were consistent
with thyroid, not parathyroid, issues, that he apprised her of the risks and complications, that the
consent form signed by plaintiff explicitly authorized additional surgery as necessary in the
exercise of medical judgment, and that he would not have performed the surgery if plaintiff refused
to permit the removal of the thyroid. A mere disagreement regarding consent was not at issue, and
expert testimony was necessary for the jury to address the issue. 5 Because the claim sounded in
5
Plaintiff signed a consent form, authorizing Dr. Hawasli to perform the operation listed as
“minimally invasive right inferior parathyroidectomy rapid pth nuclear probe.” However, the
consent also contained a paragraph authorization additional procedures if found to be necessary:
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medical malpractice, the trial court erred in failing to dismiss the claim of ordinary negligence.
And, to the extent it was claimed that the removal of the thyroid was medically necessary, plaintiff
did not identify conduct so reckless as to demonstrate a substantial lack of concern for whether an
injury results. See Radu v Herndon & Herndon Investigations, Inc, 302 Mich App 363, 382; 838
NW2d 720 (2013). Thus, I would agree that the trial court also erred in failing to dismiss the claim
of gross negligence.
I would reverse and remand for entry of an order granting summary disposition in favor of
Ascension and St. John Hospital.
/s/ Anica Letica
I fully understand that in preparation for, during and following the contemplated
operation(s), conditions may be revealed or discovered that in the judgment of the
physician and others referred to above, make necessary or advisable a different
operation or extension of the original contemplated operation. I, therefore, request
and authorize the physician and others referred to above to perform these additional
operations. [Emphasis added.]
Plaintiff contends that she merely consented to a parathyroid procedure, that Dr. Hawasli exceeded
the scope of consent she granted, that Dr. Hawasli’s action constituted ordinary negligence, and
that the jury could analyze this issue without the benefit of expert testimony. On the contrary,
Dr. Hawasli testified that plaintiff’s symptoms were not consistent with parathyroid issues and that
he suspected and warned plaintiff of thyroid issues. Dr. Hawasli denied that plaintiff ever apprised
him that he should not remove her thyroid. And he testified that he would have advised plaintiff
to find another surgeon if he could not address or remove her thyroid. Dr. Hawasli acknowledged
that the consent form identified a particular procedure, but noted the form also addressed that
physician judgment may make necessary a different operation or an extension of the original
procedure. He testified that additional issues were addressed during a surgery to prevent a patient
from enduring further surgeries and that occurred in this case. Whether Dr. Hawasli was warranted
in removing plaintiff’s thyroid during the procedure in accordance with the signed consent form
and premised on medical necessity requires expert testimony. Thus, this did not present an issue
of ordinary negligence that the jury could assess.
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