EARLINE COSTANZA V ST JOHN HOSPITAL & MEDICAL CENTER
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STATE OF MICHIGAN
COURT OF APPEALS
EARLINE COSTANZA, Personal Representative
of the Estate of SAM COSTANZA,
UNPUBLISHED
December 26, 2000
Plaintiff-Appellant,
v
No. 215854
Wayne Circuit Court
LC No. 95-537982-NH
ST. JOHN HOSPITAL AND MEDICAL
CENTER,
Defendant-Appellee,
and
MARC N. BLUM, M.D., and
CARDIOVASCULAR SURGEONS OF
METROPOLITAN DETROIT, P.C.,
Defendants.
Before: Gribbs, P.J., and Kelly and Sawyer, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting defendant St. John Hospital and
Medical Center’s motion for summary disposition. We affirm.
In December 1993, the decedent was treated for chest pains by Dr. Kyungsoo Kim at St.
Joseph Hospital in Mount Clemens. Dr. Kim transferred the decedent to St. John Hospital and
Medical Center for cardiac revascularization surgery by Dr. Douglas Lees. Dr. Lees’ partner,
defendant Marc Blum, M.D., performed the decedent’s surgery at St. John. The decedent
developed complications following the surgery, sought treatment at St. John’s emergency
department, and was readmitted to St. John. Dr. Blum performed additional surgery on the
decedent. He did not survive the second procedure.
In December 1995, plaintiff filed this medical malpractice action against defendants,
alleging that Blum’s treatment of plaintiff was negligent and that St. John and Cardiovascular
Surgeons were vicariously liable for Blum’s negligence. In May 1997, St. John filed a motion
for summary disposition arguing that it was not vicariously liable for Blum’s negligence because
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Blum was an independent contractor and plaintiff could not meet her burden of proving
ostensible agency. At a hearing in July 1997, the trial court granted St. John’s motion and
subsequently entered an order dismissing plaintiff’s claim against St. John. Plaintiff settled her
claims against the remaining defendants and the court entered an order dismissing the case in
November 1998.
Plaintiff’s sole claim on appeal is that the trial court erred as a matter of law when it
granted St. John’s motion for summary disposition. We review de novo a trial court’s decision to
grant a motion for summary disposition under MCR 2.116(C)(10). Smith v Globe Life Ins Co,
460 Mich 446, 454; 597 NW2d 28 (1999). A motion for summary disposition under (C)(10) tests
the factual support of a claim. Id. The reviewing court considers affidavits, pleadings,
depositions, admissions, and documentary evidence filed in the action or submitted by the parties
in the light most favorable to the monmoving party. Quinto v Cross & Peters Co, 451 Mich 358,
362; 547 NW2d 314 (1996). The court should grant the motion only if the affidavits or other
documentary evidence show that there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Id.
Plaintiff argues that St. John should not have been dismissed from the action because it
was vicariously liable for the negligence of its ostensible agent, Dr. Blum. Generally, a hospital
is not vicariously liable for the negligence of a physician who is an independent contractor.
Grewe v Mt Clemens General Hosp, 404 Mich 240, 250; 273 NW2d 429 (1978). However, an
agency by estoppel or ostensible agency can exist if a patient looked to the hospital for treatment
and the hospital represented that it would provide the patient with a physician. Id. at 250-251. In
order to prove that a physician was the ostensible agent of a hospital, a plaintiff must show that
(1) the patient dealing with the physician did so with a reasonable belief in the physician’s
authority, (2) the patient’s belief was generated by some act or neglect on the part of the hospital,
and (3) the patient who relied on the agent’s authority was not guilty of negligence. Chapa v St
Mary’s Hosp of Saginaw, 192 Mich App 29, 33-34; 480 NW2d 590 (1991).
In this case, plaintiff claims that there is a genuine issue of material fact regarding
whether the decedent reasonably believed that Dr. Blum was an agent of St. John and whether
that belief was generated by the actions or negligence of St. John Hospital. It is undisputed that
in December 1993, the decedent was referred for cardiac surgery by Dr. Kim, a physician from
St. Joseph Hospital, to Dr. Lees at St. John. It is also undisputed that the decedent did not
receive treatment from Dr. Lees during this admission, but was treated by Dr. Lees’ partner, Dr.
Blum. Plaintiff argues that the decedent reasonably believed he was being transferred to the care
of St. John Hospital, not to the care of an individual physician, and that Dr. Lees was an agent of
the hospital. Plaintiff claims that this belief was further reinforced by the facts of the first
admission that show that the decedent was treated by Dr. Blum, not Dr. Lees, he met Dr. Blum
for the first time at St. John Hospital, and no one informed him of the relationship between Drs.
Blum and Lees.
Contrary to plaintiff’s arguments on appeal, Dr. Kim stated that he referred the decedent
to Dr. Lees, not St. John. Plaintiff also admitted that she and the decedent were aware that Dr.
Blum was in practice with Dr. Lees and were told that Dr. Lees was an excellent surgeon. The
fact that the decedent and plaintiff decided to consent to the transfer to St. John Hospital based
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on Dr. Kim’s endorsement of Dr. Lees suggests that they were looking to Dr. Lees, not the
hospital, for their medical treatment. Grewe, supra at 251. The fact that plaintiff and the
decedent were aware that Dr. Lees and Dr. Blum were in practice together also indicates that they
had reason to believe that the doctors were not employees of St. John. Although the decedent
may have believed that Dr. Blum was an agent of St. John, we conclude that plaintiff failed to
show that this belief was reasonable.
Even if plaintiff could show that there was a genuine question of fact regarding the
decedent’s reasonable belief in Dr. Blum’s agency for St. John, plaintiff was unable to raise any
question of fact regarding St. John’s involvement in creating this belief. Plaintiff did not
introduce any documents or testimony at the trial court establishing that the decedent’s belief in
Dr. Blum’s agency was created by an act or neglect of St. John. Plaintiff’s argument for
implicating St. John appears to be that neither she nor the decedent were ever informed that Dr.
Blum was not an agent of St. John. However, plaintiff did not cite any case law supporting her
argument that St. John was under an affirmative duty to dispel the decedent’s misunderstanding
regarding Dr. Blum’s agency. Rather, the case law is clear that there must be some action or
representation by the hospital to lead the patient to reasonably believe an agency in fact existed.
Sasseen v Community Hosp Foundation, 159 Mich App 231, 240; 406 NW2d 193 (1986).
Because plaintiff produced no evidence of an act or neglect of St. John that led the
decedent to believe that Dr. Blum was its agent, she failed to prove the necessary elements of an
ostensible agency. If Dr. Blum was not the ostensible agent of St. John, then the trial court
properly found that St. John was not vicariously liable for Dr. Blum’s alleged negligence
resulting from the first admission.
Regarding the decedent’s second admission to St. John in January 1994, plaintiff argues
that the decedent was looking solely to St. John for his medical care because he sought treatment
through its emergency department and it was St. John who involved Dr. Blum and his partners in
the decedent’s care. The parties do not dispute that the decedent went to St. John Hospital on his
own initiative and that neither the plaintiff nor the decedent specifically requested care from Dr.
Blum. However, it is also undisputed that after the first admission and before the second one,
plaintiff called Dr. Blum’s private office that was separate from the hospital and the decedent
was treated by Dr. Blum in his office. In addition, plaintiff admitted that she informed hospital
personnel in the emergency department that Dr. Blum was the decedent’s doctor and she
expected that the hospital would call Dr. Blum.
We agree with the trial court that there was no question of fact that at the time of his
second admission, the decedent could not have had a reasonable belief that Dr. Blum was an
agent of St. John because the decedent established a doctor-patient relationship with Dr. Blum
independent of the hospital. Generally, where an relationship existed between the patient and the
allegedly negligent physician prior to admission to the hospital, this Court and our Supreme
Court have held that the patient could not have reasonably believed that the doctor was an agent
of the hospital. Sasseen, supra at 239-240; Revitzer v Trenton Medical Center, 118 Mich App
169, 175; 324 NW2d 561 (1982); Wilson v Stillwill, 411 Mich 587, 610; 309 NW2d 898 (1981);
Plaintiff does not dispute that the decedent received treatment from Dr. Blum in his
private office prior to the second admission. She argues, however, that this relationship did not
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preclude a finding of ostensible agency. Plaintiff is correct that this Court has held that the acts
or omissions of a hospital may override the impressions created by a previous relationship
between the patient and the doctor and may create a reasonable belief that the doctor is an agent
of the hospital. Strach v St John Hosp Corp, 160 Mich App 251, 263; 408 NW2d 441 (1987).
However, in applying the holding of Strach to this case, we cannot agree with plaintiff’s
conclusion that the decedent reasonably believed on his second admission that Dr. Blum was an
agent of St. John or that the hospital acted in some way to create this belief. Plaintiff does not
allege or present evidence of any act or representation of St. John that led the decedent to
conclude that, in spite of his independent relationship with Dr. Blum, the hospital was providing
Dr. Blum as its agent. Because plaintiff failed to present evidence to satisfy the elements of
ostensible agency for either of the decedent’s admissions to St. John, the trial court correctly
concluded that the hospital was not vicariously liable for Dr. Blum’s negligence and did not err
as a matter of law when it granted St. John’s motion for summary disposition.
Affirmed.
/s/ Roman S. Gribbs
/s/ Michael J. Kelly
/s/ David H. Sawyer
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