Willis v. Total Health Care of Detroit, Docket No. 61888

• Decision Date: 01 August 1983
• Docket Number: Docket No. 61888
• Parties: Alice WILLIS, Plaintiff-Appellant, v. TOTAL HEALTH CARE OF DETROIT, St. Joseph Mercy Hospital, S.O. Nwosu, M.D. and J.K. Rhee, M.D., Defendants, and C.L. Sarin, M.D., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 20

337 N.W.2d 20

125 Mich.App. 612

Alice WILLIS, Plaintiff-Appellant, v. TOTAL HEALTH CARE OF DETROIT, St. Joseph Mercy Hospital, S.O. Nwosu, M.D. and J.K. Rhee, M.D., Defendants, and C.L. Sarin, M.D., Defendant-Appellee.

Docket No. 61888.

Court of Appeals of Michigan.

Submitted Dec. 15, 1982.

Decided May 5, 1983.

Released for Publication Aug. 1, 1983.

Berman, Brand & Goodman, P.C. by Richard S. Goodman, Southfield, for plaintiff-appellant.

MacArthur & Cheatham, P.C. by Brian J. Doren, Detroit, for Dr. C.L. Sarin.

Before DANHOFF, C.J., and J.H. GILLIS and DEMING, ^* JJ.

DEMING, Judge.

This appeal involves the grant of an accelerated judgment by the trial court in favor of the sole remaining defendant, Dr. C.L. Sarin.

The facts as they appear in the pleadings and depositions are as follows: On or about January 22, 1979, (the complaint states January 15, 1979) plaintiff experienced pain in her abdomen and went to the branch office of defendant Total Health Care of Detroit, Inc., hereinafter referred to as Total Health Care. She was an enrollee of Total Health Care. Plaintiff was informed that she might have appendicitis and was told to go to the main office of Total Health Care on Woodward in Detroit. At this office she was examined by Sarin, a surgeon. He made certain tests and indicated an initial diagnosis of appendicitis. Sarin then made arrangements for plaintiff's admission to St. Joseph Mercy Hospital. Upon her admission her condition was diagnosed as acute appendicitis. Sarin consulted with Dr. Nwosu, a specialist in obstetrics and gynecology. Later, surgery was performed by Dr. Nwosu with the expectation of performing a hysterectomy, however, he determined there was a ruptured appendix and Dr. Rhee, a surgeon, performed an appendectomy. A further operation was required to remove abdominal abscesses. Plaintiff's post-discharge follow-up care was by Sarin.

On June 17, 1979, plaintiff filed her complaint alleging malpractice against Total Health Care, Sarin, the hospital and the other two doctors. She claimed that Sarin was an agent and employee of Total Health Care and that he was acting as such agent and employee within the scope of his authority and duties at the time of the alleged malpractice.

Total Health Care filed its cross-claim against Sarin. It alleged that a consulting agreement, dated November 9, 1978, was in effect between Total Health Care and Sarin and that in this agreement Sarin promised to indemnify Total Health Care from all malpractice claims arising against Sarin. Total Health Care further alleged that Sarin was an independent contractor rather than its agent or employee. It attached a copy of the agreement to its cross-claim. Sarin's answer to the cross-claim admitted the execution of the agreement and stated the agreement spoke for itself.

The cause was referred to mediation. The mediation panel awarded the plaintiff a total of $15,500 and apportioned that amount as follows: Sarin, $8,500, Total Health Care, $3,000 and the other defendants, $4,000. All of the defendants accepted the mediation award except Sarin.

Plaintiff executed a release in favor of Total Health Care upon plaintiff's receipt of $3,000. Sarin then moved for leave to amend his answer to include the affirmative defense that plaintiff's claim against him was barred by said release. Defendant's motion was granted. He then filed his motion for an accelerated judgment based on said bar. The trial court granted this motion because the trial court found that plaintiff's only claim against Sarin was based on the fact that Sarin was an agent and employee of Total Health Care.

It is from this accelerated judgment that plaintiff appeals.

On appeal, plaintiff has argued that Total Health Care was an active tortfeasor and was actively negligent in the medical care it provided to the plaintiff at its various clinics and also by its personnel who came in contact with her. Plaintiff failed to plead this and, at the time of oral argument on Sarin's motion for an accelerated judgment, plaintiff insisted the liability of Total Health Care was derivative and that the only reason Total Health Care was involved was because Sarin worked for it. This Court is unable to find any allegations of active negligence of Total Health Care in plaintiff's pleadings.

It is plaintiff's further claim that since the mediators' award included amounts against both Sarin and Total Health Care the mediators determined Total Health Care committed an independent act of negligence. Plaintiff has failed to cite any law in support of her argument that an award of a mediation panel determines legal liability of parties to a lawsuit. The purpose of mediation is to resolve lawsuits.

It is plaintiff's further contention that the cross-claim creates a question of fact whether Sarin was an independent contractor and, therefore, was independently liable for his alleged malpractice. The contractual arrangement between Total Health Care and Sarin would have no bearing on any theory against either Total Health Care or Sarin on any claim brought by plaintiff. Any right of indemnity Total Health Care may have has no effect upon plaintiff's claim against Total Health Care and Sarin.

At common law, the release of one of several joint tortfeasors released all other joint tortfeasors. Slater v. Ianni Construction Co., 268 Mich. 492, 256 N.W. 495 (1934); Hoban v. Ryder, 257 Mich. 188, 241 N.W. 241 (1932); Sunlin v. Skutt, 133 Mich. 208, 94 N.W. 733 (1903). Currently in Michigan the release of one of several joint tortfeasors does not release other joint tortfeasors unless the terms of the release so provide. M.C.L. Sec. 600.2925d; M.S.A. Sec. 27A.2925(4). Michigan case law has recognized that, where a master or principal does not actively participate in the negligent conduct of the servant or agent and the master or principal's liability is based solely on the doctrine of respondeat superior, the master or principal and servant or...