Estate of Green v. Yaldo

• Docket Number: 357931
• Decision Date: 25 May 2023
• Parties: ESTATE OF LAMARR GREEN, by JULIE BRESKO, Personal Representative, Plaintiff-Appellee, v. BASHAR YALDO, M.D., Defendant, and SHAHRZAD ABBASSI-RAHBAR and ST. JOSEPH MERCY-OAKLAND, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

1

ESTATE OF LAMARR GREEN, by JULIE BRESKO, Personal Representative, Plaintiff-Appellee, v. BASHAR YALDO, M.D., Defendant, and SHAHRZAD ABBASSI-RAHBAR and ST. JOSEPH MERCY-OAKLAND, Defendants-Appellants.

No. 357931

Court of Appeals of Michigan

May 25, 2023

UNPUBLISHED

Oakland Circuit Court LC No. 2020-179077-NH

Before: Cavanagh, P.J., and K. F. Kelly and Garrett, JJ.

PER CURIAM.

Defendants Shahrzad Abbassi-Rahbar (Dr. Abbassi) and St. Joseph Mercy-Oakland (St. Joseph) appeal by leave granted^[1] the order of the trial court denying their motion for summary disposition under MCR 2.116(C)(10). Because we agree that plaintiff's expert witness was not qualified to testify against Dr. Abbassi, we reverse the trial court's order as it relates to that issue. In all other respects, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

The decedent, LaMarr Green, was referred to defendant Bashar Yaldo, M.D., a board-certified general surgeon, for treatment of a bilateral inguinal hernia in 2017. Dr. Yaldo performed a robotic bilateral inguinal hernia repair at St. Joseph on February 2, 2018, and Green was discharged the same day. On the evening of February 5, 2018, Green returned to St. Joseph's with complaints of abdominal pain. He also reported throat discomfort, his recent hernia surgery, and a lack of bowel movements for four to five days. An x-ray revealed a possible early or partial small bowel obstruction, and Green was admitted to the hospital. Despite limited periods of improvement, Green's condition deteriorated and he passed away approximately two weeks later.

Plaintiff initiated this action alleging medical malpractice by Dr. Yaldo and Dr. Abbassi, who was then a resident in St. Joseph's general surgery program and participated in Green's treatment as part of the surgical critical care team. St. Joseph was named as a defendant because it "affirmatively held itself out as the employer of, and responsible for the acts or non-actions of" Dr. Yaldo and Dr. Abbassi.

Defendants moved for summary disposition under MCR 2.116(C)(10), first arguing that St. Joseph could not be held vicariously liable because Dr. Yaldo was an independent contractor, and plaintiff did not have any evidence supporting an ostensible agency theory. Defendants also sought summary disposition of claims related to Dr. Abbassi's treatment because plaintiff's proposed expert, Dr. Jason Nirgiotis, was not qualified to testify regarding Dr. Abbassi's specialty. The trial court denied defendants' motion, reasoning that questions of fact existed regarding Dr. Yaldo's ostensible agency and Dr. Abbassi's specialty. This appeal followed.

II. STANDARD OF REVIEW

We review a trial court's ruling decision on a motion for summary disposition de novo. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019).

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. [Trueblood Estate v P&G Apartments, LLC, 327 Mich.App. 275, 284; 933 N.W.2d 732 (2019), quoting Maiden v Rozwood, 461 Mich. 109, 120; 597 N.W.2d 817 (1999).]

"A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ." El-Khalil, 504 Mich. at 160 (quotation marks and citation omitted).

III. OSTENSIBLE AGENCY

Defendants argue the trial court erred when it denied summary disposition in their favor regarding the claims arising from Dr. Yaldo's treatment because Green and Dr. Yaldo had a physician-patient relationship before Green's February 5, 2018 hospitalization, which precluded a finding of ostensible agency. Defendants also assert that plaintiff failed to present evidence demonstrating that Green formed a reasonable belief regarding Dr. Yaldo's agency or that St. Joseph did anything to hold out Dr. Yaldo as its agent. We disagree.

"Generally, Michigan law will impose liability upon a defendant only for his or her own acts of negligence, not the tortious conduct of others." Laster v Henry Ford Health Sys, 316 Mich.App. 726, 734; 892 N.W.2d 442 (2016). But in a medical malpractice action, a hospital can be held liable for the negligence of its employees under a theory of respondeat superior or its independent contractors under an ostensible agency theory. See id. at 734-737.

In Grewe v Mt Clemens Gen Hosp, 404 Mich. 240, 253-255; 273 N.W.2d 429 (1978), the Michigan Supreme Court concluded that the jury in that case was free to find the defendant hospital liable for the conduct of an independent contractor because the plaintiff looked to the hospital for treatment, there was no evidence of a preexisting relationship between the plaintiff and those who treated him, nor was there record evidence that would have put the plaintiff on notice that the independent contractor at issue was not an employee of the hospital. The Court observed:

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. A relevant factor in this determination involves resolution of the question of whether the hospital provided the plaintiff with [the independent contractor] or whether the plaintiff and [the independent contractor] had a patient-physician relationship independent of the hospital setting. [Grewe, 404 Mich. at 250-251 (citations omitted).]

The Court then considered caselaw from other jurisdictions, noting a California appellate court's articulation of three elements required for a finding of ostensible agency particularly useful: (1) the patient must have a reasonable belief regarding the ostensible agent's authority; (2) that belief must be generated by an act or neglect by the alleged principal; and (3) the patient relying on the ostensible agency is not guilty of negligence. Id. at 252-253, citing Stanhope v Los Angeles College of Chiropractic, 54 Cal App 2d 141 (1942).

This Court later held that the three-part test cited in Grewe identified the controlling elements for establishing ostensible agency. See Chapa v St Mary's Hosp of Saginaw, 192 Mich.App. 29, 33-34; 480 N.W.2d 590 (1991). In Chapa, we also clarified that, despite the Michigan Supreme Court's initial reference to a "critical question," Grewe did not establish a rule of vicarious liability "merely because the patient 'looked to' the hospital at the time of admission . . . ." Id. at 32-33. The Chapa Court viewed Grewe's "critical question" as reflective of the case-specific facts at issue in Grewe, wherein the plaintiff was improperly treated by two on-call physicians with whom he had no previous relationship. Id. at 32. In contrast, the plaintiff in Chapa went to a hospital emergency room and initially received treatment from an on-call physician, but his inpatient care was entrusted to his family physician the next day. Id. at 30-31. The negligent acts were committed by the family physician and his associate several days later. Id. at 31, 33. The evidence was unclear as to whether the family doctor took over at the urging of the plaintiff's family or whether the doctor was provided by the hospital. Id. at 31, 33, 36. Under these circumstances, there was a question of fact regarding the existence of ostensible agency. See id. at 34 (affirming denial of summary disposition and motion for directed verdict).

As the we emphasized in Chapa, Grewe instructs that courts must focus on "[t]he reasonableness of the patient's belief in light of the representations and actions of the hospital . . . ." Id. at 34. However, "an independent relationship between a doctor and a patient that preceded a patient's admission to a hospital precludes a finding of ostensible agency, unless the acts or omissions of the hospital override the impressions created by the preexisting relationship and create a reasonable belief that the doctor is an agent of the hospital." Zdrojewski v Murphy, 254 Mich.App. 50, 66; 657 N.W.2d 721 (2002).

Here, Green was referred to Dr. Yaldo by another physician for treatment of his bilateral inguinal hernia, and Dr. Yaldo performed a robotic repair of the hernia on February 2, 2018, at St. Joseph. Thus, it is undisputed that Green had a physician-patient relationship with Dr. Yaldo before his admission to St. Joseph on February 5, 2018. The question is, therefore, whether St. Joseph's acts or omissions during Green's subsequent admission could result in ostensible agency, despite the preexisting relationship. Id.; see also Chapa, 192 Mich.App. at 33-34 (noting elements of ostensible agency).

The trial court did not err by concluding that the issue of ostensible agency presented a question of fact that precluded summary disposition. Although Green and Dr. Yaldo had an established relationship that predated Green's February 5, 2018 admission, there is no...