In an unreported decision, the State of Michigan Court of Appeals (“Appellate Court”) discussed ostensible agency in a Medical Malpractice case where the plaintiff  was attempting to hold a Hospital responsible for the alleged medical negligence of a gastroenterologist who had perforated the plaintiff’s colon during a colonoscopy and failed to timely diagnose the perforation, causing substantial harm to the plaintiff.

The Alleged Underlying Facts

The plaintiff was admitted to the hospital in December 2010, complaining of shortness of breath and coughing. She was treated by a primary care physician in the hospital who referred the plaintiff to the gastoenterologist for a colonoscopy after she developed diarrhea.

After she had the colonoscopy, the gastroenterologist advised her that she had a large tumor in her colon that was most likely cancerous. The plaintiff underwent colon resection surgery after which she remained in the hospital for approximately ten days during which she experienced excruciating pain. After the plaintiff was released from the hospital, she continued to experience excruciating pain and returned to the hospital the day after she was discharged from the hospital. She was told at that time that her pain was post-operative pain and she was sent home the same day.

As the plaintiff’s husband was bringing her back to the hospital the following day due to continuing pain, the plaintiff fell into a coma. After three days of observation in the hospital’s ICU, she underwent exploratory surgery during which a perforation in her colon and severe infections were discovered. Afterwards, the plaintiff suffered substantial health complications.

The plaintiff thereafter filed a Michigan medical malpractice case against the gastroenterologist and the hospital. The defendant hospital filed a motion for summary judgment, arguing that it was not liable for the gastroenterologist’s medical negligence under the theory of ostensible agency. The trial court denied the defendant hospital’s motion for summary judgment, and the hospital appealed.

What Is Ostensible Agency?

The Appellate Court stated that the elements of ostensible agency are: (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.

The Appellate Court stated that, in general, 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. 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.

The Appellate Court stated that the issue in the present case is whether the plaintiff, at the time of her admission to the hospital, was looking to the hospital for treatment of her physical ailments or merely viewed the hospital as the situs where her physician would treat her for her problems. A relevant factor in this determination is whether the hospital provided the plaintiff with the physician or whether the plaintiff and the physician had a patient-physician relationship independent of the hospital setting.

In the case it was deciding, the Appellate Court determined that the plaintiff had an existing patient-physician relationship with the primary care physician who referred her to the gastroenterologist, and that the plaintiff did not have reason to believe the primary care physician was an employee of the defendant hospital. Furthermore, the defendant hospital did not take any action or make any representation that would lead the plaintiff to reasonably believe that the gastroenterologist was acting as its agent (no one informed the plaintiff that the gastroenterologist was an employee of the defendant hospital and she relied on her primary care physician to refer her to a gastroenterologist).

The Appellate Court therefore held that there was inadequate evidence that the defendant hospital took any action or made any representation that led the plaintiff to reasonably believe that the gastroenterologist was an agent of the defendant hospital, and summary judgment should have been granted to the defendant hospital by the trial court.

Source

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