The Michigan Supreme Court (MSC) recently entered orders in two cases signaling its intent to consider two important issues in medical malpractice litigation. On October 20, 2021, the MSC granted the plaintiff’s application for leave in Markel v William Beaumont Hospital from the Court of Appeals’ unpublished opinion affirming the trial court’s order dismissing claims of vicarious liability against the hospital based on the conduct of a hospitalist working as an independent contractor. On October 22, 2021, the MSC granted oral argument on the defendants’ application for leave in Horn v Swofford from the Court of Appeals’ published opinion finding that the one most relevant specialty for expert qualification under MCL 600.2169(1) was neuroradiology rather than diagnostic radiology. Opinions from the MSC in these two cases could produce significant changes in the applicable standards for hospital vicarious liability (commonly known as “Grewe” liability) and application of MCL 600.2169(1) to expert qualification in cases involving multiple specialties and/or subspecialties.
Markel v William Beaumont Hospital
The MSC issued its seminal opinion establishing the framework for evaluating ostensible agency claims against hospitals in Grewe v Mt. Clemens Gen Hosp, 404 Mich 240 (1978). The elements for an ostensible agency claim outlined in Grewe have been distilled by the Court of Appeals to the following:
- the person dealing with the agent must do so with belief in the agent’s authority and the belief must be reasonable;
- the belief must be generated on some act or neglect of the hospital; and
- the person relying on the agent’s authority must be free of negligence.
Chapa v St. Mary’s Hosp of Saginaw, 192 Mich App 29 (1991). The Grewe standard has been the subject of numerous Court of Appeals opinions that have refined the framework for hospital ostensible agency claims over the last 40 plus years.
In Markel, the plaintiff presented to the defendant hospital emergency department for evaluation. The plaintiff was eventually admitted to the hospital by Dr. Lonappan—a hospitalist employed by Hospital Consultants, PC. HCPC had a contract with the plaintiff’s primary care provider Dr. Bonema to provide inpatient care to his patients when admitted to the hospital. The plaintiff later filed suit alleging malpractice against Dr. Lonappan and alleging that Dr. Lonnappan was an agent of the defendant hospital. The hospital filed a motion for summary disposition contending that Dr. Lonnappan was not an ostensible agent of the hospital. The trial court granted the motion relying primarily on the fact that the plaintiff testified that she had no memory of Dr. Lonnappan and that there was no evidence that the hospital took any affirmative action to foster a belief that Dr. Lonnappan was its agent.
On appeal, the Court of Appeals affirmed the trial court’s ruling on ostensible agency in an unpublished opinion. In affirming the trial court, the majority opinion relied primarily on the plaintiff’s deposition testimony that she did not recall Dr. Lonnappan. In light of this testimony, the majority concluded that the logos on Dr. Lonnappan’s lab coat and how Dr. Lonnappan introduced himself to the plaintiff were immaterial because there was no evidence that the plaintiff had a reasonable belief that Dr. Lonnappan was an agent of the hospital.
Judge Beckering issued a lengthy concurring opinion indicating that she concurred in the result of the opinion only because she was bound by the MSC order in Reeves v Midmichigan Health, 489 Mich 908 (2011). In Reeves, the MSC entered an order reversing the COA opinion for the reasons outlined in the dissenting opinion which contended that there was no ostensible agency because there was no evidence that the hospital did anything to generate a reasonable belief of agency. Judge Beckering contended in her concurrence that Court of Appeals opinions issued since Grewe have improperly expanded the obligations on plaintiffs beyond what the MSC intended in Grewe and implored the MSC to revisit Grewe and the framework for vicarious liability claims against hospitals.
The MSC’s order granting leave in Markel provides that the “parties shall include among the issues to be briefed whether the Court of Appeals correctly applied the ostensible agency test set forth in Grewe v Mount Clemens General Hosp, 404 Mich 240 (1978), but see Reeves v MidMichigan Health, 489 Mich 908 (2011).” The plaintiff-appellant’s brief is due on January 31, 2022. The MSC order invites amicus participation from interested persons and groups. The fact that the MSC awarded a full grant of leave in Markel suggests that the Court intends to take a comprehensive look at Grewe and the framework for hospital ostensible agency which could lead to significant changes in the standards for evaluating such claims.
Horn v Swofford
MCL 600.2169(1) requires a standard of care expert in a malpractice case to have the same board certification as the defendant physician and to have devoted greater than 50 percent of his/her professional time to the clinical practice or teaching of the same specialty as the defendant physician in the year prior to the alleged malpractice. In Woodard, the MSC interpreted MCL 600.2169(1) to require that an expert match only the “one most relevant specialty” of the defendant physician and that the “one most relevant specialty” is the specialty being practiced by the defendant at the time of the alleged malpractice. The Woodard Court further held that a subspecialty is a “specialty” and that a certificate of added qualification (CAQ) constitutes a “board certification.” The Woodard Court defined “specialty” to mean a branch of medicine where board certification is available.
In Horn, the plaintiff estate alleged malpractice by the defendant radiologist Dr. Swofford in the interpretation of a head CT scan. At the time he read the head CT, Dr. Swofford was board certified only in diagnostic radiology. However, he had previously held a CAQ in neuroradiology. Dr. Swofford testified that he devoted 75 percent of his practice to diagnostic radiology and the remaining 25 percent to neuroradiology. The plaintiff produced an expert witness with a CAQ in neuroradiology who testified that he devoted 90-95 percent of his professional time to neuroradiology. The plaintiff filed a motion asking the trial court to confirm that neuroradiology was the one most relevant specialty for purposes of MCL 600.2169(1). The trial court denied the motion concluding that diagnostic radiology was the one most relevant specialty.
The Court of Appeals granted the plaintiff’s application for leave. The Horn panel found that both diagnostic radiology and neuroradiology constituted a “specialty” for purposes of MCL 600.2169(1) as interpreted by the MSC in Woodard. The Horn panel further opined that the difficulty in the issue presented was that a head CT is a neuroimage that could be interpreted by a neuroradiologist or a diagnostic radiologist. The Horn panel relied principally on the Court of Appeals’ opinion in Reeves v Carson City Hosp, 274 Mich App 622 (2007) in holding that neuroradiology was the one most relevant specialty. In Reeves, the Court of Appeals held that emergency medicine was the one most relevant specialty in a case where the defendant physician was board certified in family medicine but practicing in an emergency department at the time of the alleged malpractice. The Horn panel found that, under the reasoning of Reeves, the one most relevant specialty was neuroradiology because Dr. Swofford was interpreting a neuroimage and could become (and had in the past) board certified in neuroradiology. Judge Boonstra wrote a short concurring opinion urging the MSC to clarify and/or reconsider Woodard.
The MSC’s order granting oral argument on the plaintiff’s application directs the parties to submit supplemental briefing “addressing whether MCL 600.2169, as interpreted by Woodard v Custer, 476 Mich 545 (2006), permits a medical malpractice plaintiff to establish the standard of care with an expert whose subspecialty focuses on the type of care at issue, but whose subspecialty is not the same specialty of the defendant health professional.” It is worth noting that the MSC’s order constitutes only a grant of “mini” oral argument and not a full grant of the application for leave. The MSC may decide to simply deny leave after entertaining an oral argument. However, if the MSC elects to publish an opinion, it may make significant changes to the Woodard analysis and approach to expert qualification in cases involving multiple specialties and/or subspecialties.
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