Ellison v. Wayne County General Hospital

• Decision Date: 22 October 1980
• Docket Number: Docket No. 78-4471
• Citation: 100 Mich.App. 739,300 N.W.2d 392
• Parties: Genevieve Josephine ELLISON, Plaintiff-Appellant, v. WAYNE COUNTY GENERAL HOSPITAL, a municipal corporation, John R. Gosling, M.D., Joseph L. Wilkis, M.D., Judith Pagano, M.D., Lance A. Talmage, M.D.,Defendants-Appellees. 100 Mich.App. 739, 300 N.W.2d 392
• Court: Court of Appeal of Michigan — District of US

Page 392

300 N.W.2d 392

Genevieve Josephine ELLISON, Plaintiff-Appellant, v. WAYNE COUNTY GENERAL HOSPITAL, a municipal corporation, John R. Gosling, M.D., Joseph L. Wilkis, M.D., Judith Pagano, M.D., Lance A. Talmage M.D.,Defendants-Appellees.

Docket No. 78-4471.

100 Mich.App. 739, 300 N.W.2d 392

Court of Appeals of Michigan.

Oct. 22, 1980.

Released for Publication Jan. 29, 1981.

[100 MICHAPP 741] Robert E. Swickle, Detroit, for plaintiff-appellant.

David J. Curran, Detroit, for Wayne County General Hospital.

Ralph F. Valitutti, Jr., Detroit, for other defendants-appellees.

[100 MICHAPP 742] Before J. H. GILLIS, P. J., and V. J. BRENNAN and MILLER, ^* JJ.

BRENNAN, Judge.

In this action, plaintiff's complaint alleged that five physicians associated with defendant hospital were culpable of medical malpractice in the delivery of plaintiff's baby. The circuit court granted defendant hospital's motion for accelerated judgment on the grounds of governmental immunity. Plaintiff voluntarily dismissed her suit against one of the defendant physicians and proceeded against the remaining four in a jury trial. The jury returned verdicts of no cause of action in favor of each of the defendants. Plaintiff appeals, and we affirm.

On June 24, 1972 plaintiff, then 40 years old, entered Wayne County General Hospital for the expected delivery of her seventh child. Dr. Pagano, a second-year resident, administered a drug called "pitocin" to induce labor. Dr. Wilkis, the chief resident in obstetrics, delivered a normal and healthy nine-pound, two-ounce child through the use of the "Barton's forceps" method. When plaintiff's placenta did not discharge naturally, Dr. Wilkis removed it manually. While doing so he noticed that plaintiff's uterus had ruptured and decided that a total hysterectomy was necessary. Dr. Wilkis thereupon consulted Dr. Lance Talmage, chief resident in gynecology, and Dr. John Gosling, supervisor of these residents. Dr. Gosling gave Dr. Talmage permission to perform the hysterectomy without an attending staff physician. Dr. Talmage thereupon returned to the hospital [100 MICHAPP 743] and performed the operation assisted by Drs. Wilkis and Pagano. During this operation, plaintiff's left ureter developed a hole as the result of either an incision or a natural tearing related to the hysterectomy. As a result, plaintiff developed urinary tract difficulties which remained despite two subsequent surgical procedures.

Plaintiff advanced several theories of malpractice. Defendant doctors claimed that they performed to the requisite standard of care and that their decisions represented the exercise of sound medical judgment. Apparently the jury agreed, as it returned verdicts of no cause of action in favor of each of the defendants.

Plaintiff raises four issues on appeal, none of which requires reversal and only one which need be extensively addressed.

Initially, plaintiff correctly claims that the Supreme Court has decided that a county hospital does not enjoy governmental immunity, Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978). Subsequently, two panels of this Court decided that Parker is to be applied retroactively, Berkowski v. Hall, 91 Mich.App. 1, 282 N.W.2d 813 (1979). Pearsall v. Williams, 93 Mich.App. 231, 285 N.W.2d 806 (1979). Recently, the Supreme Court addressed the issue of Parker's retroactivity in Murray v. Beyer Memorial Hospital, 409 Mich. 217, 221, 293 N.W.2d 341 (1980). "(T)he rule of Parker is to be applied to all cases pending on December 27, 1978 in which an express challenge to the defense of governmental immunity was made and preserved as well as all cases started after that date."

In the instant case, defendant hospital filed its motion for accelerated judgment based on governmental immunity on March 25, 1974. Plaintiff's response to this motion, filed April 29, 1974, expressly[100 MICHAPP 744] challenged the hospital's defense of governmental immunity. On June 14, 1974, the circuit judge issued his opinion dismissing the hospital as a party defendant with prejudice. Thus, on December 27, 1978, the case was pending, a claim of appeal having been filed with this Court on October 23, 1978.

Plaintiff is, therefore, correct in her assertion that accelerated judgment in favor of the hospital was erroneous. While generally the improper granting of a motion for accelerated judgment necessitates a remand for full trial, we find that, under the circumstances presented here, such a remedy would be superfluous.

Our review of the pleadings reveals that plaintiff pled no theory of liability against the hospital not predicated upon the liability of an individual doctor for which it was responsible. Count I alleged lack of informed consent because the hospital and each of the defendants failed to inform plaintiff that the hospital was a teaching facility and that unlicensed residents and interns would provide unsupervised treatment. Although the trial court granted a directed verdict in favor of the individual defendants on the informed consent count at trial, arguably plaintiff could have made out a consent claim against the hospital based on the hospital's status. Such a claim, however, could only succeed if plaintiff alleged that the failure to provide this information was beneath the standard of practice in the community. Marchlewicz v. Stanton, 50 Mich.App. 344, 349-350, 213 N.W.2d 317 (1973). Plaintiff did not so allege.

Counts II and III sounded in negligence and malpractice, respectively, and were identical. Our examination of these allegations reveals that the hospital's alleged negligence derived solely from [100 MICHAPP 745] the acts of the individual doctors. Even the supervisory acts of the hospital were raised against individuals. An argument that the hospital might have been negligent for its lack of proper procedures is unpersuasive here, where the jury determined that the unsupervised individuals were not negligent. The hospital cannot be liable on a respondeat superior theory if the persons having primary responsibility were not liable. Ravenis v. Detroit General Hospital, 63 Mich.App. 79, 83-84, 234 N.W.2d 411 (1975). Lamb v. Oakwood Hospital Corp., 41 Mich.App. 287, 200 N.W.2d 88 (1972).

Having pled nothing of substance against the hospital that she did not try and lose against the doctors, the question becomes whether plaintiff may relitigate the doctors' alleged acts of negligence against the hospital in a retrial. We believe that on the basis of collateral estoppel she may not.

An issue of fact determined in a trial between the parties may be relitigated against a party erroneously dismissed from the suit if there is no mutuality between him and the party to the first trial. Belin v. Jax Kar Wash No. 5, Inc., 95 Mich.App. 415, 291 N.W.2d 61 (1980). This is predicated upon the general rule that collateral estoppel does not apply in the absence of mutuality. Howell v. Vito's Trucking and Excavating Co., 386 Mich. 37, 191 N.W.2d 313 (1971). Mutuality exists if there is a "substantial identity" between the parties to the two adjudications. Senior Accountants, Analysts and Appraisers Ass'n v. Detroit, 60 Mich.App. 606, 611, 231 N.W.2d 479 (1975), aff'd 399 Mich. 449, 249 N.W.2d 121 (1976); Local 98 v. Flamegas Detroit Corp., 52 Mich.App. 297, 302-304, 217 N.W.2d 131 (1974). Well-recognized exceptions to the mutuality rule,...