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August 25, 2016

COA holds that hospital cannot be held vicariously liable for on-call physician

A hospital’s comprehensive on-call policy does not afford it adequate control over on-call physicians to sustain a claim of vicarious liability, says the Michigan Court of Appeals in Laster v. Henry Ford Health System, No. 324739.
 
Plaintiff arrived to the emergency room of Henry Ford complaining of sharp pain in her abdomen, nausea, vomiting, and a history of Crohn’s disease.  The emergency room physician and radiologist reviewed plaintiff’s CT scan and believed she was suffering from appendicitis.  Dr. Lim was on-call and was called to perform an appendectomy, which took place the following morning.  Plaintiff started suffering complications and five days later, Dr. Lim performed an exploratory laparotomy and ileocecal resection.  Five days after that, Dr. Lim performed another surgery and determined that plaintiff was suffering from a bowel perforation secondary to the Crohn’s disease, so he performed an ileocecectomy. 
 
Plaintiff alleged that Dr. Lim was negligent in evaluating her condition and in performing surgery because he failed to diagnose and treat the perforation of her bowel.  Plaintiff also contended that Henry Ford is vicariously liable for Dr. Lim’s negligence because Dr. Lim is an actual agent or an ostensible agent of Henry Ford.  Henry Ford moved for summary disposition on the grounds that (1) the hospital did not have sufficient control over Dr. Lim to make Dr. Lim its agent for purposes of vicarious liability, and (2) plaintiff’s ostensible agency theory failed because Henry Ford said and did nothing to represent that Dr. Lim was its employee and because plaintiff signed an acknowledgment that Dr. Lim was not Henry Ford’s employer.  Plaintiff filed a response and argued that the on-call policy provisions established that the hospital had actual control over Dr. Lim and asserted that an ostensible agency relationship arose because the acts, facts, and circumstances led plaintiff to believe that Dr. Lim was an employee of the hospital. 
 
The trial court granted Henry Ford’s motion in part and denied in part.  The trial court granted Henry Ford’s motion regarding plaintiff’s claim under the ostensible agency theory but denied the hospital’s motion with respect to the issue of actual agency.  Henry Ford filed an application for leave to appeal limited to the issues raised in the application and supporting brief, and plaintiff did not appeal the grant of the motion on the issue of ostensible agency.
 
The Court of Appeals agreed with Henry Ford’s contention that it was entitled to judgment as a matter of law because the hospital exerted insufficient control over the acts of Dr. Lim.  The Court of Appeals reasoned that Henry Ford did not retain any, much less sufficient, control and direction of Dr. Lim’s actual work and that the on-call policy did not give Henry Ford the right to address or control how any on-call physician diagnoses or treats a patient.  Furthermore, there was no record evidence that Henry Ford directed, supervised, or otherwise had any input on how Dr. Lim made his diagnosis or conducted surgery.  Therefore, The Court of Appeals reversed the trial court’s decision to deny Henry Ford’s motion for summary disposition on the actual issue of actual agency and remand for the trial court to grant summary disposition in favor of defendants.  

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