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Costanza v. St. John Hospital12/26/2000
UNPUBLISHED
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 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
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