ZIARA FITZGERALD V BD OF HOSP MANAGERS CITY OF FLINT
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STATE OF MICHIGAN
COURT OF APPEALS
ZIARA FITZGERALD, a Minor by her Next
Friend, GEAMILL GIBSON,
UNPUBLISHED
December 30, 2008
Plaintiff-Appellant,
v
BOARD OF HOSPITAL MANAGERS FOR THE
CITY OF FLINT, d/b/a HURLEY MEDICAL
CENTER,
No. 280032
Genesee Circuit Court
LC No. 04-080012-NH
Defendant-Appellee,
and
LARRY D. YOUNG and NORTHPOINTE
COMMUNITY AND EDUCATION CENTER,
a/k/a HAMILTON COMMUNITY HEALTH
NETWORK, INC.,
Defendants.
Before: Servitto, P.J., and Donofrio and Fort Hood, JJ.
FORT HOOD, J. (dissenting).
I respectfully dissent.
A trial court’s decision regarding a motion for summary disposition is reviewed de novo.
Cowles v Bank West, 476 Mich 1, 13; 719 NW2d 94 (2006). When reviewing a summary
disposition decision, the evidence is viewed in the light most favorable to the nonmoving party.
Joliet v Pitoniak, 475 Mich 30, 35; 715 NW2d 60 (2006). The moving party has the initial
burden to support its claim for summary disposition by affidavits, depositions, admissions, or
other documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996). The burden then shifts to the nonmoving party to demonstrate that a genuine issue of
material fact exists for trial. Id. Affidavits, depositions, and documentary evidence offered in
support of and in opposition to a dispositive motion shall be considered only to the extent that
the content or substance would be admissible as evidence. Maiden v Rozwood, 461 Mich 109,
120-121; 597 NW2d 817 (1999). Summary disposition is suspect where motive and intent are at
issue or where the credibility of the witness is crucial. Vanguard Ins Co v Bolt, 204 Mich App
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271, 276; 514 NW2d 525 (1994). The trial court may not make factual findings or weigh
credibility when deciding a motion for summary disposition. In re Handelsman, 266 Mich App
433, 437; 702 NW2d 641 (2005). When the evidence conflicts, summary disposition is
improper. Lysogorski v Bridgeport Charter Twp, 256 Mich App 297, 299; 662 NW2d 108
(2003).
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. 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.
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. [Grewe v Mt Clemens Gen Hosp, 404 Mich 240, 250251; 273 NW2d 429 (1978) (citations omitted).]
To obtain recovery against a principal for the alleged acts of an ostensible agent, the plaintiff
must prove that: (1) the person dealing with the agent believed in the agent’s authority and this
belief was reasonable; (2) the belief was generated by some act or neglect of the principal sought
to be charged; and (3) the person relying on the agent’s apparent authority must not be guilty of
negligence. Id. at 252-253. “Agency is always a question of fact for the jury.” Id. at 253
quoting Stanhope v Los Angeles College of Chiropractic, 54 Cal App 2d 141, 146; 128 P2d 705
(1942).
Review of the testimony reveals that the acting plaintiff, Geamill Gibson, suffered from
some degree of disability. Plaintiff’s mother suspected that she was pregnant and took her to the
Northpointe Clinic. There, plaintiff saw the person characterized as her “family doctor.” After
confirming the pregnancy, this doctor, Dr Syed, prescribed pre-natal vitamins and advised her to
return for pre-natal care. Plaintiff was unaware that Dr. Syed would no longer be treating her.
Rather, the next time she returned to “Hurley’s Northpointe Clinic,” Dr. Pyatt was “in the room.”
Plaintiff testified that, toward the end of her pregnancy, Dr. Pyatt introduced her to Dr. Young,
defendant’s alleged ostensible agent, at the clinic. However, plaintiff testified that Dr. Pyatt
indicated that Dr. Young would be treating her temporarily. Although Dr. Young had a private
practice elsewhere, plaintiff never met with him at his practice; all visits were at the clinic.
Plaintiff testified that the sign in front of the building identified the clinic as the “Hurley
Northpointe” clinic, and she further opined that the clinic door indicated that it was a “Hurley”
facility. When plaintiff was admitted to the hospital, Dr. Young was “on call” that day which
was why he delivered plaintiff’s baby.
Defendant asserted that plaintiff failed to present any reasonable evidence regarding the
association or representation of Dr. Young by defendant as its agent. It was alleged that plaintiff
failed to present any evidence regarding the signs, and the pre-existing relationship between
plaintiff and Dr. Young precluded any claim of ostensible agency. However, the burden of
demonstrating entitlement to summary disposition rests with the moving party, and the burden
does not shift to the nonmoving party until that burden is satisfied. Quinto, supra. Although
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defendant presented a contractual agreement to evidence a change in ownership of the clinic,
defendant failed to present any evidence of the signs and when, and if, the signs were changed to
reflect the ownership change. Plaintiff testified regarding her experience when visiting the
clinic, and her recollection of the representation that the clinic was a Hurley facility.
Additionally, although both Dr. Pyatt and Dr. Young had private practices, plaintiff did not
receive treatment at either office. Indeed, Dr. Young took over plaintiff’s care at the clinic, she
was not advised to transfer to Dr. Pyatt’s private practice. There is evidence from the testimony
that plaintiff received treatment at the clinic by the doctors who were provided because Medicaid
was accepted there. Further, Dr. Young delivered the baby because he was on call at the time of
admission. In light of the conflicting evidence, I would conclude that a factual issue is presented
that must be resolved by the trier of fact. Therefore, I would reverse.
/s/ Karen M. Fort Hood
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