Grewe v. Mt. Clemens General Hospital

• Decision Date: 28 December 1978
• Docket Number: Docket No. 59588,No. 2,2
• Citation: Grewe v. Mt. Clemens General Hospital, 404 Mich. 240, 273 N.W.2d 429 (Mich. 1978)
• Parties: Laverne GREWE, Plaintiff-Appellee, v. MT. CLEMENS GENERAL HOSPITAL, Defendant-Appellant, and Dr. Michael Fugle, Defendant-Appellee. Calendar404 Mich. 240, 273 N.W.2d 429
• Court: Michigan Supreme Court

Page 429

273 N.W.2d 429

Laverne GREWE, Plaintiff-Appellee, v. MT. CLEMENS GENERAL HOSPITAL, Defendant-Appellant and Dr. Michael Fugle, Defendant-Appellee.

Docket No. 59588.

Calendar No. 2.

404 Mich. 240, 273 N.W.2d 429

Supreme Court of Michigan.

Argued April 11, 1978.

Decided Dec. 28, 1978.

Lopatin, Miller, Bindes, Freedman & Bluestone by Michael Gagleard, Detroit, for plaintiff-appellee.

Kitch & Suhrheinrich, P. C., by Richard A. Kitch, Jeremiah J. Kenney, Detroit, for defendant-appellant.

PER CURIAM.

This is a medical malpractice case. At approximately 11 p. m. on March 20, 1967, the plaintiff received an electrical shock while at work. This shock allegedly caused the plaintiff to suffer a dislocated shoulder. After initially visiting a clinic for treatment, the plaintiff went to the defendant Mt. Clemens General Hospital where he was admitted. He was initially examined by Dr. Gerald Hoffman, an internist, who sought to ascertain whether the plaintiff had suffered any cardiac damage. Dr. Hoffman sought consultation from Dr. Robert O. Fagen, an orthopedic surgeon with staff privileges at the hospital. Dr. Fagen's examination revealed, Inter alia, that the plaintiff had sustained a dislocated right shoulder.

Dr. Fagen designated Dr. Michael Fugle, an orthopedic resident, to attempt to reduce, at least partially, the dislocation of plaintiff's shoulder. Therefore, Dr. Fugle made several unsuccessful attempts to do so.

After one of these unsuccessful attempts, Dr. A. Lewis Katzowitz, Dr. Hoffman's associate, who also had staff privileges at the hospital and who, like Dr. Hoffman, was also an internist, observed that the plaintiff was in considerable discomfort and himself attempted to reduce the dislocation by placing his foot on the plaintiff's chest and pulling his arm. He too was unsuccessful in reducing the dislocation. Significantly, Dr. Katzowitz testified that he did not view the X-rays before attempting the reduction.

The plaintiff was to argue at trial that these attempts at reducing his shoulder dislocation resulted in a brachial plexus injury and a fracture of the greater tuberosity. The plaintiff claimed that these injuries were the result of medical malpractice performed on him while he was in the hospital.

In any event, the plaintiff eventually had to undergo surgery for the removal of bone fragments in repair of the biceps tendon and joint capsule.

The plaintiff subsequently filed a lawsuit against the hospital and Dr. Michael Fugle, claiming negligence. Verdicts of no cause of action as to both defendants were returned by a jury which heard the evidence of the case in 1971. The plaintiff pursued an appeal to the Court of Appeals, and that Court reversed and remanded for new trial because the trial court had restricted cross-examination from medical text books. 47 Mich.App. 111, 209 N.W.2d 309 (1973); Lv. dn. 390 Mich. 811 (1973).

On remand, the plaintiff once again alleged negligence on the part of Dr. Fugle, the hospital, and the hospital's "agents and servants". The case proceeded to trial, and the jury returned a verdict of no cause of action against Dr. Fugle but found for the plaintiff against the hospital in the amount of $120,000 in damages. The hospital moved for new trial or judgment notwithstanding the verdict. The motion was denied.

The hospital pursued an appeal to the Court of Appeals. The Court of Appeals affirmed. 74 Mich.App. 479, 253 N.W.2d 805 (1977).

We granted the hospital leave to appeal, limited to three issues: (1) whether the jury's verdict of no cause of action as to Dr. Fugle but in favor of the plaintiff against the hospital was inconsistent; (2) whether the trial court erred in refusing to strike certain testimony given by an expert witness in response to a hypothetical question and in its instructions to the jury with regard to the opinions of experts; and (3) whether the trial court erred in failing to Sua sponte give the jury an instruction on SJI 34.03 reduction of damages to "present worth".

I

The hospital argues that the jury verdict against it should be set aside because it is internally inconsistent. The hospital contends that the plaintiff's complaint, the proofs adduced at trial, and the instructions given to the jury predicated the liability of the hospital solely on the alleged negligence of Dr. Michael Fugle. Since the jury found by virtue of its verdict of no cause of action against Dr. Fugle that he was not negligent, and since the theory of liability against the hospital was based on Fugle's negligence, the verdict in the plaintiff's favor against the hospital cannot stand. In conjunction with this argument, the hospital further contends that even if the plaintiff's theory did encompass a charge of negligence on the part of other physicians practicing medicine at the hospital, there is no showing that the other physician (Dr. Katzowitz) was an agent of the hospital. Finally, the hospital avers that there was no evidence to establish the standard of care with reference to an internist and therefore, if the jury predicated the hospital's liability on the liability of Dr. Katzowitz, the verdict cannot be maintained.

Both the trial court, in its opinion denying the hospital's motion for new trial, and the Court of Appeals were convinced that the plaintiff's pleadings were sufficiently broad to encompass an allegation of derivative liability on the part of the hospital by virtue of the negligent actions of physicians practicing medicine at the hospital in addition to the claimed negligence of Dr. Fugle. We agree. As we have noted, Supra, the plaintiff's complaint alleged negligence on the part of the hospital's "agents". Moreover, the plaintiff's "theory" at trial was not merely limited to alleged negligence on the part of Dr. Fugle. Counsel for plaintiff extensively cross-examined Dr. Katzowitz both as to his relationship with the plaintiff and his attempt to reduce the dislocation of the plaintiff's shoulder.

The hospital's argument draws some support from the instructions given by the trial judge to the jury. Our review of these instructions does indicate that the plaintiff's primary theory with regard to the derivative liability of the hospital apparently was that Dr. Fugle was negligent and, since Dr. Fugle was an orthopedic resident at the hospital and was paid by the hospital, the hospital should be vicariously liable for the negligent acts of Dr. Fugle. However, the instructions which were given to the jury are not entirely bereft of any articulably distinct basis for finding the hospital vicariously liable. For example, the trial judge instructed the jury:

"(I)f you find that the defendant hospital, as well as their agents, servants and Dr. Fugle did breach the standard of practice of this and similar communities in their reducing of the shoulder, then you are to compute such damage as you feel resulted from the departure of the standard of practice."

And:

"I further charge you, members of the jury, that the hospital was under a duty to a patient to see that he was provided with competent medical care and treatment while he was confined there. If the hospital does not provide him with proper and competent medical care and treatment, the hospital will be liable for the negligence of the person that they so provided who was on their staff or who is a resident in training or internist."

And finally, the trial judge instructed the jury that they could return a verdict in favor of Dr. Fugle but against the hospital. The jury did just that. Thus we find that there is ample record support to conclude that the plaintiff had articulated a theory of derivative liability independent of the theory which depended on an initial finding of negligence on the part of Dr. Fugle.

The hospital, however, argues that even if such a theory was presented, there is no basis for concluding that Dr. Katzowitz was an agent of the hospital so as to render it vicariously liable for his negligent treatment of the plaintiff. The hospital vigorously contends that Dr. Katzowitz merely had staff privileges at the hospital, and was not in the employ of the hospital; and that therefore no agency relationship can be found to exist. The hospital further asserts that it exercised no control over Dr. Katzowitz' treatment of the plaintiff and should not be held accountable for his actions.

The Court of Appeals, after rejecting the hospital's argument that the jury's verdict was inconsistent, did not deal directly with this aspect of the hospital's argument. The Court merely noted that:

"The plaintiff pleaded and argued that the hospital was liable for the negligence of a person or persons other than Dr. Fugle. Evidence in support of the theory was introduced. The trial court correctly instructed the jury that it could hold the hospital liable for the negligence of a staff member and that they could return a verdict for Dr. Fugle and against the hospital. The jury did exactly that." 74 Mich.App. 484, 253 N.W.2d 807.

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. See Anno: Hospital-Liability-Neglect of Doctor, 69 A.L.R.2d 305, 315-316. 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. See Howard v. Park, 37 Mich.App. 496, 195 N.W.2d 39 (1972), lv. dn. 387 Mich. 782 (1972). See also Schagrin v. Wilmington Medical Center, Inc., 304 A.2d 61 (Del.Super.Ct., 1973).

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...