KELLY SUE SYMONS V DR ROBERT J PRODINGER
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STATE OF MICHIGAN
COURT OF APPEALS
KELLY SUE SYMONS, Personal Representative
of the Estate of DANIEL A. SYMONS,
UNPUBLISHED
November 13, 2008
Plaintiff-Appellee,
v
No. 269663
Calhoun Circuit Court
LC No. 04-000769-NH
DR. ROBERT J. PRODINGER, DALE
RUSSELL, P.A., and BATTLE CREEK
EMERGENCY ROOM PHYSICIANS, P.C.,
Defendants-Appellants,
and
BATTLE CREEK HEALTH SYSTEMS,
Defendant.
Before: Markey, P.J., and Saad and Wilder, JJ.
MARKEY, J. (concurring in part, dissenting in part).
I concur with the majority’s opinion except as to that found under Section E pertaining to
Dr. Prodinger’s motion for JNOV.
As the majority notes, Dr. Prodinger argued that he should have been granted JNOV
because plaintiff never pled vicarious liability against him based on the claimed negligence of his
PA Russell. I find the majority’s decision to reverse the trial court’s decision denying Dr.
Prodinger JNOV factually and legally incongruous and disingenuous under the particular facts of
this case.
Let me first discuss the applicable law. As the majority notes, in considering a motion
for JNOV, the trial court was required to review the evidence in the light most favorable to the
non-moving party; we, then, as an appellate court, review the trial court’s decision de novo.
We “review the evidence and all legitimate inferences in the light most favorable
to the nonmoving party.” Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305
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(2000); Forge, supra at 204, quoting Orzel v Scott Drug Co, 449 Mich 550, 557;
537 NW2d 208 (1995). A motion for directed verdict or JNOV should be granted
only if the evidence viewed in this light fails to establish a claim as a matter of
law. Wilkinson, supra at 391; Forge, supra at 204.
Moreover, and most pertinent to this case, is that physician assistants are permitted to practice
medicine only as set forth under Michigan statute. Specifically, the Public Health Code (PHC)
defines a physician’s assistant as “an individual licensed as a physician’s assistant under part 170
or part 175.” MCL 333.2701(o). The most important part of MCL 333.17001(1), found in part
170 of the PHC, is (f) which provides as follows:
“Practice as a physician’s assistant” means where practice or medicine where
osteopathic medicine and surgery performed under the supervision of a physician
or a physicians licensed under this part or part 175 [emphasis added].
In fact, provisions essentially identical to those in part 170 are also found in part 175. For
example, at the time relevant to the malpractice here, MCL 333.17501(e) provided: “‘practice as
a physician’s assistant’ means the practice of osteopathic medicine performed under the
supervision of a physician licensed under this part or part 170.” 2005 PA 264 effective March
30, 2006, amended this section to redesignated § 17501(e) so it now reads: “practice as a
physician’s assistant’ means the practice of medicine, osteopathic medicine and surgery, and
podiatric medicine and surgery performed under the supervision of a physician or podiatrist
licensed under this article.” Thus, it is patent that a physician’s assistant may only practice
medicine under the license and supervision of a licensed physician, here, unequivocally, Dr.
Robert Prodinger.
The fact that many physicians are employed by professional corporations is irrelevant as
to these statutory requirements. Given that professional corporations are the norm for practicing
physicians, were the existence of the corporation as the ostensible employer of both the
supervising physician and the PA a shield from liability from the requisite supervision the
supervising physician must provide a PA practicing under him, the statute would have no
practical application. PAs would simply be practicing medicine along with their co-employees,
the licensed physicians. But corporations are not required to be licensed, nor are they
individuals, so in effect, no one would be responsible for supervising PAs practicing medicine.
This argument is patently specious and would create a huge, unintended loophole. Medical
professional corporations are comprised of professionally licensed individual physicians. These
individuals are and must be the licensed physicians responsible for supervising the PAs who are
practicing medicine under the physicians’ licenses and with whom they are working. Dr.
Prodinger may not have seen Mr. Symons and he may not have discussed his case with PA
Russell or reviewed Mr. Symons’ chart immediately, but legally and factually Dr. Prodinger was
the licensed physician in charge of supervising PA Russell in this case. And it is he who was
responsible for PA Russell’s care and treatment as such. Neither can there be any serious doubt
that BCERP, P.C. and all of its practicing physicians always understood that their PAs could
only practice medicine under the physicians’ supervision. Indeed, that is one of the main reasons
that defendants understood plaintiff’s allegations as initially set forth in the notice of intent and
later in the subsequent complaint.
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Although the majority discusses pleading-notice issues with respect to Dr. Prodinger, the
record is replete and clear with the fact that any such issues were forfeited, waived, or simply
harmless because upon agreement of all parties. Evidence of this agreement is that the case was
ultimately submitted to the jury via a special verdict form only with respect to PA Russell.
Moreover, contrary to defendant’s argument on appeal and the majority’s discussions and
analysis, the record evidences that defendant tried this case with the understanding and
agreement that both Dr. Prodinger and Battle Creek Emergency Room Physicians, P.C., which
employed both Dr. Prodinger and P.A. Russell, only faced vicarious liability for any negligence
the jury might find with respect to PA Russell. That is exactly what the jury did: They found PA
Russell negligent. And they did it unequivocally in a detailed special verdict form.
Indeed, the notice of intent (NOI) is also straightforward, and it stretches credulity to
claim that any of the defendants in this case did not clearly understand it. Paragraph 12 of the
NOI sets forth that “the negligence and violations of the applicable standard of care by
PRODINGER, an emergency room physician, RUSSELL, a licensed physician assistant, and
triage nurses in the emergency room at BCHS, by failing . . ..” It then further sets forth the
various allegations of negligence. It is, and certainly was not at the time, an unknown fact that
PA Russell could only practice under the direct supervision of a licensed physician. Of course,
the supervising physician likely changed depending on who was assigned to what shift but,
unfortunately, on the day of Mr. Symons’ treatment at issue, May 2, 2003, Dr. Prodinger was the
emergency room physician on duty, and PA Russell was the physician assistant working under
his supervision. There was simply no misunderstanding of any of these facts by any of the
defendants in this case.
Eventually, as the case proceeded, and is often the case in litigation, more facts came to
light, and trial strategies were refined. Sometimes during the course of this process, parties are
released by a settlement or for other reasons, issues actually tried may have evolved and
changed. Not only is that trial scenario common place, it is contemplated and legally sanctioned.
MCR 2.118(C)(1) provides in relevant part:
When issues not raised by the pleadings are tried by express or implied consent of
the parties, they are treated s if they had been raised by the pleadings.
That is precisely what occurred here. Although, paragraph 12 of plaintiff’s complaint also set
forth allegations of negligence by Russell and against Prodinger, eventually, both plaintiffs and
defendants stipulated that the only issue that would be presented to the jury pertained to whether
or not Russell was negligent as a physician’s assistant in his care and treatment of Mr. Symons.
Again, the record is clear that the defendants stipulated that Dr. Prodinger was Russell’s
supervising physician and on that basis could be held vicariously liable for Russell’s actions. A
party may not stipulate to a position in the trial court and then argue on appeal that the resulting
action was error. Czymbor’s Timber, Inc. v Saginaw, 269 Mich App 551, 556; 771 NW2d 442
(2006); Chapdelaine v Sochocki, 247 Mich App 167, 177; 635 NW2d 339 (2001).
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A precise wording of the stipulation set forth on the record at trial is as follows:
MR. ROYCE: On May 2, 2003, Russell and Dr. Prodinger and were employees
of Battle Creek Emergency Room physicians. Russell and Prodinger were in the
course and scope of their employment. Russell is a licensed PA. Dr. Prodinger is
an emergency room physician. And Russell was acting under the supervision of
Dr. Prodinger at the time of the events in this lawsuit. Thank you.
THE COURT: All right. Is that an accurate statement of the stipulation in which
you’re willing to agree Mr. Hackney?
MR. HACKNEY: Yes, your Honor.
Initially, defense counsel had argued in a motion in limine that there were no viable
allegations against Dr. Prodinger and that “this case should be tried against. . . PA Russell and
then the PA should be in here as being vicariously liable for PA Russell but there’s no reason to
have Dr. Prodinger in here individually . . .” The trial court noted that it would await the proofs
to make such a decision. Then, at trial, one of plaintiff’s experts testified that Dr. Prodinger
violated the standard of care because Russell was “working as a surrogate for Dr. Prodinger,”
who was “supposed to be supervising the physician’s assistant.” In essence, Dr. Barton testified
that Dr. Prodinger either failed to directly supervise PA Russell or failed to provide him guidance
on when to seek help.
After plaintiff rested her case–in chief, defendants then moved for directed verdict with
respect to Dr. Prodinger. Defense counsel again referred to the stipulation that Dr. Prodinger
was Russell’s supervisor and that he was therefore in a respondeat superior position. The trial
court ultimately concluded that Dr. Barton’s testimony regarding Dr. Prodinger’s failure to
supervise was sufficient to deny defendants’ motion for directed verdict. Under the trial scenario
that developed here, it’s neither surprising nor unreasonable that both plaintiff and defendant’s
counsel entered into such a stipulation: PA Russell was simply unable to perform his duties
unless he did so under the supervision of a licensed physician, here, again, unequivocally, Dr.
Prodinger. This stipulation protected Dr. Prodinger from having to defend further by limiting his
exposure to that for respondeat superior, which greatly simplified the case. Ultimately, under
these facts, and viewing them in the light most favorable to plaintiff, the trial court’s denial of
defendant’s motion for directed verdict and later JNOV was patently correct.
On appeal, our Court, while reviewing the evidence de novo must use the same
perspective, but then reach the difficult conclusion that the evidence “fails to establish a claim as
a matter of law.” I completed disagree with the majority’s conclusion that the trial court erred
and question their full application of the requisite standard of review. Unfortunately, I must
conclude that the majority’s decision usurps the legal judgment and decisions of the attorneys
and judge trying the case, side-steps the law and the determination of a jury that had listened to
all the evidence and had been properly instructed. In our system jury verdicts are, and should be,
nearly sacrosanct, overturned in only the rarest of situations. So, in my view, the majority has
rendered a decision far beyond our permissible bounds as appellate court judges in overturning
the trial court’s decision that JNOV was unwarranted.
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Additionally, case law in general supports the contention that Dr. Prodinger was
appropriately deemed to be in a position of a respondeat superior for PA Russell’s actions.
Frankly this legal proposition seems so basic as to not require any detailed analysis. Surely a
supervising physician of a PA is in a position of respondeat superior. Indeed, the most recent
case involving a physician’s assistant, Wolford v Duncan, 279 Mich App 631 (2008) presents a
factual scenario of a supervising physician and a PA wherein it is simply understood and
apparently an inherent proposition that the physician is responsible for any potentially negligent
acts of the PA whom he is supervising. Although nothing in either MCL 333.17076 or MCL
333.17078 plainly imposes vicarious liability on a supervising physician for the acts of a
physician’s assistant, they need not because the common law of agency remain in effect. (See
Barnes v Mitchell, 341 Mich 720; 67 NW2d 208 (1954), which held a chiropractor vicariously
liable for the negligent acts of one of his employees. The Court determined the employee had (1)
acted within the scope of her employment and also (2) had acted “to further the interest of the
defendant rather than her own interest.”) Even though both Russell and Prodinger were
employed by BCERP, P.C., case law supports that Prodinger is vicariously liable for Russell:
“As a general rule, a supervising physician is vicariously liable for the negligence of subordinate
physicians acting as his agent.” Thomas v Van Tuinen, unpublished opinion per curiam of the
Court of Appeal, issued February 20, 2007 (Docket No. 263613), slip op at 5. Although
unpublished cases are not precedential, they may persuade and guide us. The Thomas Court
relied on several authorities, including Barnes, supra, and Whitmore v Fabi, 155 Mich App 333;
399 NW2d 520 (1986). In the later case, this Court opined:
Physicians and surgeons, like other persons, are subject to the law of agency.
Barnes v Mitchell, 341 Mich 7, 19; 67 NW2d 208 (1954). A physician or surgeon
may be liable for the negligence or malpractice of another physician or surgeon
acting as his agent. Barnes, supra, pp 18-19; see, also, Anno: Liability of one
physician or surgeon for malpractice of another, 85 ALR2d 889. A physician
who calls in or recommends another is not liable for the other’s malpractice where
there is no agency, concert of action or negligence selection. Rodgers v Canfield,
272 Mich 562, 564; 262 NW 409 (1935); Hitchcock v Burgett, 38 Mich 501
(1878). Likewise, physicians who are independently employed or acting
independently in a case cannot be held vicariously liable. Brown v Bennett, 157
Mich 654, 658; 122 NW 305 (1909). Vicarious liability has been recognized,
however, where the physicians are jointly employed or acting jointly on a case.
See 85 ALR2d 889, 904 and the cases cited therein. [Whitmore, supra at 338339.]
The following statutes regulating supervision of physician’s assistants also suggest that
the duty is not delegable. MCL 333.17048(4) (governing the practice of medicine), and MCL
333.17548(4) (governing the practice of osteopathic medicine and surgery), each provides: “A
physician shall not delegate ultimate responsibility for the quality of medical care services, even
if the medical care services are provided by a physician’s assistant.” See, also, Klein v Kik, 264
Mich App 682; 692 NW2d 854 (2005), in which the vicarious liability of the physician for the
negligence of the physician’s assistance is assumed but not an issue in the case. Hence, it
appears evident that Dr. Prodinger was vicariously liable for PA Russell. But, again, the
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majority erred in even reaching this issue because defense counsel stipulated at trial that Dr.
Prodinger would be vicariously liable for any negligence found in respect to PA Russell.
In conclusion, in my opinion, the trial court properly denied defendant Prodinger’s
motion for JNOV1, and its decision should be affirmed. Otherwise, I agree with the majority’s
conclusions.
/s/ Jane E. Markey
1
My analysis, of course, would also apply to any prior motions pertaining to this and related
subject matter, e.g. the motion for directed verdict.
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