He was admitted and treated by three doctors who plaintiff alleges were negligent, and ultimately caused the decedent’s death.

The decedent’s wife, on behalf of his estate, sued defendant hospital on a theory of vicarious liability arising out of the doctors’ alleged negligence.

of the three allegedly negligent doctors.

He was admitted and treated by three doctors who plaintiff alleges were negligent, and ultimately caused the decedent’s death.

The decedent’s wife, on behalf of his estate, sued defendant hospital on a theory of vicarious liability arising out of the doctors’ alleged negligence.

of the three allegedly negligent doctors.

“A hospital may be 1) directly liable for malpractice, through claims of negligence in supervision of staff physicians as well as selection and retention of medical staff, or 2) vicariously liable for the negligence of its agents.”

After so holding, the Al-Shimmari Court relevantly explained: Because the remaining defendants may only be vicariously liable on the basis of the imputed negligence of [the physician], plaintiff must demonstrate that [the physician

merits of the negligence claim against [the physician].

A medical malpractice case is a professional negligence case, i.e., negligence by a physician.

“Negligence” is defined as the “failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against

-2- member of the same or a similar profession does not make the rule of respondeat superior inapplicable, and a physician is liable not only for negligence of laymen employed by him, but also for the negligence of nurses or

other physicians in his employ.’

More recently, in Laster v Henry Ford Health Sys, 316 Mich App 726, 734-735 ; 892 NW2d 442 (2016), this Court, in the context of considering whether a hospital was vicariously liable for the alleged negligence of a physician

In Brackens v Detroit Osteopathic Hosp, 174 Mich App 290 ; 435 NW2d 472 (1989), this Court held that it was a question of fact whether the defendant hospital could be held liable for two physicians’ negligence in failing to

The two physicians were both independent contractors.

Given that the physician in Wilson was not negligent, there could be no hospital liability based on agency, regardless of whether it was termed “ostensible agency” or “agency by estoppel.” Id.

“A hospital may be 1) directly liable for malpractice, through claims of negligence in supervision of staff physicians as well as selection and retention of medical staff, or 2) vicariously liable for the negligence of its agents.”

“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.”

The Supreme Court explained the governing criteria for determining ostensible agency: Generally speaking, a hospital is not vicariously liable for the negligence of a physician who is an independent contractor and merely uses the

Instead, plaintiff’s complaint specifically alleged negligence by Dr.

Labrador provided negligent treatment, making Dr. Labrador directly liable and Port Huron Hospital and Physicians Network vicariously liable for Dr. Labrador’s negligent conduct.

Paul was not her treating physician and she identifies no other actor for whose negligence Port Huron Hospital and Physicians Network should be held vicariously liable.

“[I]n general, a hospital is not vicariously liable for the negligence of a physician who is an independent contractor and simply uses the hospital’s facilities to provide treatment to his patients.”

Hagenstein possessed staff privileges at defendant’s hospital, “[t]he sole fact that a defendant hospital’s facilities were used by an alleged negligent physician is insufficient to create the appearance of an agency relationship between

“[I]n general, a hospital is not vicariously liable for the negligence of a physician who is an independent contractor and simply uses the hospital’s facilities to provide treatment to his patients.”

Hagenstein possessed staff privileges at defendant’s hospital, “[t]he sole fact that a defendant hospital’s facilities were used by an alleged negligent physician is insufficient to create the appearance of an agency relationship between

A doctor is not liable merely because of an adverse result. However, a doctor is liable if the doctor is negligent and that negligence is a proximate cause of an adverse result.

Moreover, in denying plaintiff’s motion for a new trial, the trial court noted: “Plaintiff’s arguments that the negligen[ce] of the physicians is imputable to the DSC and other joint ventures is irrelevant where the jury has found

no negligence.”

A doctor is not liable merely because of an adverse result. However, a doctor is liable if the doctor is negligent and that negligence is a proximate cause of an adverse result.

Moreover, in denying plaintiff’s motion for a new trial, the trial court noted: “Plaintiff’s arguments that the negligen[ce] of the physicians is imputable to the DSC and other joint ventures is irrelevant where the jury has found

no negligence.”

GFL relied on Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 284-286 ; 731 NW2d 29 (2007), in which a doctor that the Detroit Medical Center employed had been dismissed from a negligence lawsuit with prejudice because he was served

Our Supreme Court held that because the dismissal operated as an adjudication on the merits under MCR 2.504(B)(3) (involuntary dismissal), the plaintiff could not argue the merits of his negligence claim against the doctor and was

therefore unable to establish that the Detroit Medical Center was vicariously liable for the doctor’s alleged negligence.

physician.

Here, both plaintiff’s and defendant’s experts testified that nerve injury is a known complication of submandibular gland excision and could occur without any negligence on behalf of the treating physician.15 While it is true, as plaintiff

]” -10- occurred and that such an injury is rare absent negligence on behalf of the treating physician. Thus, as in Wilson, “plaintiffs have not met the threshold requirement for an inference of negligence[.]” Id.

The Supreme Court disagreed, concluding that a hospital could be held liable for the negligence of a doctor who was an independent contractor under certain conditions: 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.

ANALYSIS “A hospital may be 1) directly liable for malpractice, through claims of negligence in supervision of staff physicians as well as selection and retention of medical staff, or 2) vicariously liable for the negligence of its

“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.”

A hospital may be directly liable for malpractice through the negligent supervision of its staff physicians and also may be vicariously liable for the negligence of its agents.

Here, there is no dispute that Hurley was operating an emergency room and Bernie presented herself for treatment with no prior relationship to the doctors who treated her.

Similarly, concerning whether the person relying on the agent’s apparent authority was not negligent in that reliance (the third factor), plaintiffs have alleged that Bernie’s reliance upon Hurley was reasonable because she entered

Wolf was asked, when you deliver— when you’re confronted with this obstetrical emergency, and you deliver this youngster, if this youngster has a brachial plexus injury, does that automatically mean the doctor is negligent?

If the physician is negligent in providing medical care to the victim and the victim later dies, the defendant is still considered to have proximately caused the victim’s death because it is reasonably foreseeable that negligent

At the same time, gross negligence or intentional misconduct by a treating physician is not reasonably foreseeable, and would thus break the causal chain between the defendant and the victim.

DISCUSSION “A hospital may be 1) directly liable for malpractice, through claims of negligence in supervision of staff physicians as well as selection and retention of medical staff, or 2) vicariously liable for the negligence of

“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.”