Nippa v. Botsford General Hosp.

Decision Date03 July 2003
Docket NumberDocket No. 229113.
PartiesSally NIPPA, Personal Representative of The Estate of Robert Nippa, deceased, Plaintiff-Appellant, v. BOTSFORD GENERAL HOSPITAL, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Worsham & Victor, P.C. (by Richard B. Worsham and John J. Schutza), Southfield, for the plaintiff.

Sullivan, Ward, Bone, Tyler & Asher, P.C. (by Ronald S. Lederman, Gerard J. Andree, and Alexandra C. Akas), Southfield, for the defendant. Before: WHITBECK, C.J., and O'CONNELL and METER, JJ.

ON REMAND

O'CONNELL, J.

This case is before us on remand from our Supreme Court "for reconsideration in light of Cox v. Flint Bd. of Hosp. Mgrs, 467 Mich. 1 (2002)." Nippa v. Botsford Gen Hosp, 468 Mich. 881, 661 N.W.2d 231 (2003). In our opinion, Cox supports our decision in Nippa v. Botsford Gen. Hosp., 251 Mich.App. 664, 651 N.W.2d 103 (2002) (Nippa I,) which the Supreme Court, in lieu of granting leave to appeal, vacated in its order of remand. That is, a plaintiff must attach to a medical-malpractice complaint against an institutional defendant an affidavit of merit executed by a physician who specializes or is board-certified in the same specialty as the health professionals on whose conduct the action is based. Thus, we come to the same conclusion as we did in our previous decision where we affirmed the trial court's order granting summary disposition for defendant.

I. OUR PREVIOUS DECISION IN NIPPA I

In Nippa I,1 plaintiff argued that

pursuant to the plain language of M.C.L. § 600.2169(1)(a),2 Dr. Markowitz was competent to testify against defendant.... [P]laintiff maintained that because the hospital, the only named defendant to the action, was not board certified ..., plaintiff was not required to produce an expert witness with like qualifications [as the doctors she alleged were negligent in her complaint]. [Nippa I, supra at 666-667, 651 N.W.2d 103.]

We concluded that plaintiff's affidavit of merit in this medical-malpractice case was insufficient because it was not signed by a doctor who specializes or is board-certified in the same specialty as the doctors on whose conduct the action was based. MCL 600.2169; see also Tate v. Detroit Receiving Hosp., 249 Mich.App. 212, 218-219, 220, 642 N.W.2d 346 (2002), cited in Nippa I, supra at 672-673, 651 N.W.2d 103. We disagreed with plaintiff's position then and we continue to do so now.

II. OUR SUPREME COURT'S DECISION IN COX

In Cox, supra, our Supreme Court held that a hospital may be held vicariously liable for the acts of its agents. Cox, supra at 11, 651 N.W.2d 356. "[A] hospital's vicarious liability arises because the hospital is held to have done what its agents have done." Id. at 15, 651 N.W.2d 356. Even when the hospital is the only named defendant, the issue remains whether the hospital's agents violated the standard of care applicable to them. Id. at 5, 14-15, 651 N.W.2d 356. Our Supreme Court stated:

Vicarious liability is "indirect responsibility imposed by operation of law." As this Court stated in 1871:
"[T]he master is bound to keep his servants within their proper bounds, and is responsible if he does not. The law contemplates that their acts are his acts, and that he is constructively present at them all." [Smith v. Webster, 23 Mich. 298, 299-300 (1871) (emphasis added).]
In other words, the principal "is only liable because the law creates a practical identity with his [agents], so that he is held to have done what they have done." Id. at 300. See also Ducre v. Sparrow-Kroll Lumber Co., 168 Mich. 49, 52, 133 N.W. 938 (1911). [Cox, supra at 11, 651 N.W.2d 356 (citation omitted).]
III. ANALYSIS

After reviewing our Supreme Court's remand order, we conclude that the Court remanded this case for us to apply the logic of Cox to the present facts.

Again, the Court in Cox held that under a vicarious-liability theory, a principal "`is only liable because the law creates a practical identity'" between the principal and its agents. Id., quoting Smith, supra at 300. The principal is held to have done what the agent has done. The law contemplates that the agent's acts are the principal's acts and that the principal "`is constructively present at them all.'" Id. Applying the logic of Cox to the present case, we hold that the standard of care applicable to the hospital is the same standard of care that is applicable to the physicians named in the complaint. For all practical purposes the hospital stands in the shoes of its agents (the doctors).

Thus, we opine that with regard to vicarious liability, medical-malpractice law applicable to a physician is also applicable to the physician's hospital. Plaintiff cannot avoid the procedural requirements of the law by naming only the principal as a defendant in a medical-malpractice lawsuit. All procedural requirements are applicable to the hospital in the same manner and form as if the doctor were a named party to the lawsuit. This is so because the law creates a practical identity between a principal and an agent, and, by a legal fiction, the hospital is held to have done what its agents have done. Id. It would be absurd to have one set of legal rules for a hospital and another set of legal rules for its agents. See, e.g., Houghton Lake Area Tourism & Convention Bureau v. Wood, 255 Mich.App. 127, 142-143, 150, 662 N.W.2d 758 (2003) (statutory construction should avoid an illogical or absurd result).3

Consequently, a plaintiff who sues an institutional defendant such as defendant hospital must premise her claim on vicarious liability because the institution itself is incapable of committing any independent actions, including negligence. Cox, supra at 12, 651 N.W.2d 356. Vicarious liability imposes a legal fiction on defendant hospital providing that the principal is only liable because the law creates a practical identity with its agents so that the hospital is held to have done what the agents have done. Id. at 11-12, 651 N.W.2d 356. The law treats the principal and the agent as sharing a single identity, transporting the acts of the doctors (the agents) to the hospital (the principal). Just as an institution itself is incapable of committing any independent actions, including negligence, an institution itself is incapable of making an averment in an affidavit of merit. Therefore, the term "party" under M.C.L. § 600.2169(1)(a) encompasses the agents for whose alleged negligent acts the hospital may still be liable. A plaintiff must submit with a medical-malpractice complaint against an institutional defendant an affidavit of merit from a physician who specializes or is board-certified in the same specialty as that of the institutional defendant's agents involved in the alleged negligent conduct. Cox, supra at 11-12, 15, 651 N.W.2d 356; Nippa I, supra at 672-673, 651 N.W.2d 103; see also M.C.L. § 600.2912d(1).

IV. THE DISSENTING OPINION

The dissenting opinion4 faults the majority opinion for "rewrit [ing] M.C.L. § 600.2169 to make it less `illogical....'"5 Post at 640. Unfortunately, the dissent's conclusion that plaintiff is not required to file an affidavit signed by a board-certified specialist in the same specialty as defendant's doctors is exactly contrary to the clear intent of M.C.L. § 600.2169(1)(a). See Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998) (Legislature's intent is paramount in statutory construction); Nippa I, supra at 673, 651 N.W.2d 103 (the purpose of M.C.L. § 600.2912d[1] and 600.2169 is to ensure trustworthy medical expert testimony and to discourage frivolous lawsuits). The dissent's strained reading of the statute actually defeats the true purpose of the statute. In Tate, supra at 218, 642 N.W.2d 346, this Court held, "Subsection 2169(1)(a) specifically states that an expert witness must `specialize[ ] at the time of the occurrence that is the basis for the action' in the same specialty as the defendant physician."6

The English language with all its nuances is not as precise or logical a language as the dissenting opinion advocates. The conceptual difficulty that bedevils the dissenting opinion is its dogged, literalist application of a generic term, "party," to a specific set of facts. By employing an unrealistic approach, the dissent allows itself to wear blinders, losing all peripheral vision and resulting in a collision with reason and common sense. See Houghton Lake, supra; Hoste v. Shanty Creek Mgt., Inc.,

459 Mich. 561, 574, 592 N.W.2d 360 (1999) (statutory construction should avoid rendering a statute nugatory). The named parties to this lawsuit have asked us to give meaning to § 2169 as it relates to the term "party." In our view, the majority opinion has accomplished this goal with common sense and indisputable logic. After reading our opinion, the reader and the practitioner have a logical rule to follow when addressing the requirements of § 2169.7

Indeed, the dissent concludes that the proper definition for the term "party" in § 2169 is "party defendant." Post at 641. Of course, the phrase "party defendant" does not appear in the statute, but that does not stop the dissenting opinion from constructing an impregnable circle that leaves unanswered the issue how our Supreme Court's opinion in Cox applies to the present case.

We would like to make clear what § 2169 does not state. It is clear that the statute does not state "party defendant" or "party of record" as the dissenting opinion would have one believe.8 Nor does it say "party plaintiff." It does not say "agent for party defendant," and it does not say "agent for party plaintiff." Nor does the statute say that an agent for another hospital may qualify as an expert medical witness under § 2169 and M.C.L. § 600.2912d(1) in a medical-malpractice lawsuit against a hospital only. Nor does § 2169 say that an affidavit of...

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