Lincoln v. Gupta

• Decision Date: 12 July 1985
• Docket Number: Docket Nos. 68690,70510
• Citation: 370 N.W.2d 312,142 Mich.App. 615
• Parties: Warren LINCOLN, Sr., Administrator of the Estate of Donna M. Lincoln, Deceased, Plaintiff-Appellant, v. Dr. Narsingh GUPTA and Hutzel Hospital, a Michigan corporation, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 312

370 N.W.2d 312

142 Mich.App. 615

Warren LINCOLN, Sr., Administrator of the Estate of Donna M Lincoln, Deceased, Plaintiff-Appellant, v. Dr. Narsingh GUPTA and Hutzel Hospital, a Michigan corporation, jointly and severally, Defendants-Appellees.

Docket Nos. 68690, 70510.

Court of Appeals of Michigan.

Submitted April 9, 1984.

Decided Feb. 21, 1985.

Released for Publication July 12, 1985.

Law Offices of Smith & Quinn, P.C., by Richard M. Amsbaugh, Detroit, for plaintiff-appellant.

Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C., by Paul L. Kaliszewski and Anthony G. Arnone, Detroit, for Narsingh Gupta, M.D.

Dykema, Gossett, Spencer, Goodnow & Trigg, by Daniel G. Wyllie and James M. Cameron, Jr., Detroit, for Hutzel Hosp.

Before HOOD, P.J., and KELLY, and LIVO ^*, JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's order granting a judgment on the jury verdict of no cause of action on his medical malpractice claim (Docket No. 68690) and the trial court's order taxing actual costs and attorney fees against plaintiff (Docket No. 70510).

Decedent, plaintiff's wife, was referred by her physician to defendant Gupta, a heart specialist, for treatment of chest pains. Defendant Gupta concluded that decedent had arteriosclerotic heart disease. Defendant Gupta made arrangements to have decedent admitted to defendant Hutzel Hospital for a catheterization. During the operation, performed by defendant Gupta on September 8, 1978, decedent experienced chest pain. Due to continuing chest pain, decedent was transferred to the coronary care unit for monitoring. After two days, decedent was transferred to a private general-care room. On September 11, 1978, decedent suffered a fatal heart attack. On May 22, 1979, plaintiff, as administrator of decedent's estate, filed the instant wrongful death action against defendants Gupta and Hutzel Hospital, alleging medical malpractice. On November 23, 1982, the jury returned a verdict of no cause of action as to both defendants. On March 16, 1983, the trial judge entered an order taxing plaintiff with actual costs and attorney fees as to Hutzel Hospital in the amount of $17,500 and $13,500 as to Dr. Gupta.

I

Approximately one month before trial, plaintiff executed a covenant not to sue Dr. Edmund Carey, a first-year resident physician who was assigned by the hospital to evaluate decedent upon admission and work with defendant Gupta on decedent's case. The covenant not to sue Dr. Carey provided: "[t]his instrument is not a release to any of the claims made against Dr. Narsingh Gupta or Hutzel Hospital, nor to any other person whomsoever, but is simply a covenant not to sue Dr. Edmund Carey * * *." Defendant Hutzel Hospital made a pretrial motion to bar plaintiff from proceeding against defendant Hutzel Hospital for vicarious liability arising out of acts or omissions of Dr. Carey, based on the covenant not to sue. The trial court granted defendant Hutzel's motion, ruling that a covenant not to sue an employee operates as a release as to the employer whose liability arises only by operation of law under respondeat superior. Plaintiff cited the contribution statute, M.C.L. Sec. 600.2925d; M.S.A. Sec. 27A.2925(4), for the proposition that the covenant not to sue did not discharge the hospital from liability. The trial judge rejected this argument, stating that M.C.L. Sec. 600.2925d; M.S.A. Sec. 27A.2925(4) was not applicable. Accordingly, he instructed the jury "[t]hat Hutzel Hospital is not liable for the acts or omissions of Dr. Edmund Carey".

On appeal, plaintiff contends that he is entitled to a new trial because the trial court improperly granted defendant Hutzel's motion and improperly instructed the jury. Plaintiff argues that the trial court's ruling prevented plaintiff from developing one of his major theories of liability against the hospital, that the cardiac catheterization should not have been performed on decedent and that defendant Hutzel's agent, Dr. Carey, should have prevented defendant Gupta from performing it.

At common law, the release of one of several joint tortfeasors released all other joint tortfeasors. Slater v. Ianni Construction Co., 268 Mich. 492, 494, 256 N.W. 495 (1934). The so-called contribution statute, which was amended in 1974, provides in part:

"When a release or a covenant not to sue or not to enforce judgment is given in good faith to 1 of 2 or more persons liable in tort for the same injury or the same wrongful death:

"It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide." M.C.L. Sec. 600.2925d; M.S.A. Sec. 27A.2925(4).

Thus, under current Michigan law, the release of one of several joint tortfeasors does not release other joint tortfeasors unless the terms of the release so provide. However, where the master or principal's liability is based solely on the doctrine of respondeat superior, the master or principal and servant or agent are technically not joint tortfeasors. Geib v. Slater, 320 Mich. 316, 31 N.W.2d 65 (1948), overruled on other grounds, Moore v. Palmer, 350 Mich. 363, 86 N.W.2d 585 (1957); Willis v. Total Health Care of Detroit, 125 Mich.App. 612, 617, 337 N.W.2d 20 (1983). Statutes in derogation of the common law are to be strictly construed. Morgan v. McDermott, 382 Mich. 333, 357, 169 N.W.2d 897 (1969). Accordingly; we agree with the trial court that since Dr. Carey and defendant Hutzel are not joint tortfeasors M.C.L. Sec. 600.2925d; M.S.A. Sec. 27A.2925(4) is not applicable to the present case.

Under the common law, there is a distinction between a covenant not to sue and a release of liability. See Cook v. City Transport Corp., 272 Mich. 91, 92-93, 261 N.W. 257 (1935). A covenant not to sue an agent does not release the principal from liability. Thomas v. Checker Cab Co, Inc, 66 Mich.App. 152, 161, 238 N.W.2d 558 (1975). Therefore, in the present case, the trial court improperly ruled that the covenant not to sue Dr. Carey released defendant Hutzel from liability. We find, however, that reversal is not required. Since the jury returned a verdict of no cause of action in favor of defendant Gupta, the jury determined that defendant Gupta had not negligently performed the operation or negligently decided to perform it. Therefore, defendant Hutzel could not be held liable for the alleged omission of Dr. Carey in not preventing the operation. Consequently, the trial court's erroneous interpretation of the covenant not to sue is harmless.

For similar reasons, we find that the trial court did not err reversibly by precluding argument regarding the hospital's failure to prevent the catheterization. Plaintiff's argument was that defendant hospital was liable because Dr. Sobczek, Dr. Carey's superior, should have prevented defendant Gupta from performing the catheterization. The jury's finding that there was no negligence in regard to Dr. Gupta's decision to perform the catheterization would render any possible error on this issue harmless. A principal, such as defendant Hutzel Hospital, cannot be held liable if the agent having primary responsibility is not liable. See Ravenis v. Detroit General Hospital, 63 Mich.App. 79, 234 N.W.2d 411 (1975).

II

Plaintiff argues that he was denied a fair trial by certain remarks of defense counsel. First, plaintiff objects to the hospital's attorney's reference to the covenant not to sue Dr. Carey. Defense counsel's reference to the covenant was made while objecting to plaintiff's counsel's direct examination of plaintiff's expert:

"Furthermore, he's asking for a question as to whether or not the hospital, through its agents violated the standard of care by the covenant not to sue that was given to Dr. Carey by the plaintiff, this Court has already ruled, he's prohibited from going into this against the hospital."

Plaintiff argues that he was prejudiced by this statement because the jury may have believed that plaintiff had discharged Dr. Carey from liability or given him immunity in exchange for perjured testimony. Plaintiff argues that such prejudice could not have been cured by a cautionary instruction. Defense counsel's reference to the covenant not to sue was improper under Brewer v. Payless Stations, Inc., 412 Mich. 673, 679, 316 N.W.2d 702 (1982). However, we do not believe that counsel's one-time reference to the covenant was sufficiently prejudicial so as to require a new trial. Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 106, 330 N.W.2d 638 (1982). ¹

Plaintiff also argues that he was denied a fair trial by defense counsel's references to racism. The record discloses that counsel for the hospital did refer to Dr. Gupta's ethnic background, but only in the course of discussing his medical qualifications. We cannot conclude, as plaintiff suggests, that defense counsel's questions were designed to inflame the jury against plaintiff's counsel. The remarks made by defendant Gupta's counsel in closing argument are of a different nature. ² The argument of Gupta's counsel suggests that plaintiff's suit against defendant Gupta was motivated by Gupta's ethnic background. Such argument was improper. It lacked evidentiary support and was calculated to arouse prejudice against plaintiff. Plaintiff did not object to defense counsel's remarks but argues that the possible prejudice could not have been cured by an instruction from the bench. We do not believe that counsel's argument was so prejudicial as to deny plaintiff a fair trial. Reetz, supra, p. 103, 330 N.W.2d 638.

III

Plaintiff contends that the trial court improperly prevented plaintiff from presenting evidence that defendant hospital was negligent in not obtaining decedent's informed consent and improperly instructed the jury that only defendant Gupta had a duty to inform the decedent of the risks and alternatives to the surgery performed. On appeal, plaintiff argues that a hospital has a duty to reasonably...