“[W]e express our disapproval of the often-suggested proposition that an independent relationship between the patient and his treating physician requires a finding of no agency relationship as a matter of law. It seems apparent that acts or omissions of a defendant hospital in the particular circumstances of treatment may override the impressions created by a previous relationship and reasonably create a belief that a staff physician is acting on behalf of the hospital.”
How later courts described this case
- “[W]e express our disapproval of the often-suggested proposition that an independent relationship between the patient and his treating physician requires a finding of no agency relationship as a matter of law. It seems apparent that acts or omissions of a defendant hospital in the particular circumstances of treatment may override the impressions created by a previous relationship and reasonably create a belief that a staff physician is acting on behalf of the hospital.”
Written by the judges who cited it.
The opinion
P. C. Elliott, J.
(dissenting). When you cut through all of the facts stated in Part I of the majority opinion and the discussion of case law in Part ii, it boils down to imposing liability on the hospital without a finding of fault by the hospital if
(a) the patient is referred to his surgeon, an independent contractor, on the hospital staff;
(b) nurses and employees of the hospital take orders from independent doctors who are on the hospital staff;
(c) surgery is performed by a team of independent doctors, chosen by the chief surgeon, who are sometimes referred to as that hospital’s surgical team; and
(d) a paralyzed patient who has settled with his doctors and seeks more money from the hospital says he looked to the hospital itself for treatment.
I cannot agree.
Mr. Strach was referred to Dr. Yap for surgery by his own doctor, Dr. Africa. The surgery was to be done at St. John Hospital where Dr. Yap and Dr. Africa have staff privileges. Dr. Yap, the chief surgeon, was assisted by Dr. Africa and two other *286 surgeons and by an anesthesiologist. All were selected by Dr. Yap, and all, like him, were in private practice. None of them, except Dr. Yap and possibly Dr. Africa, were in any way to blame for plaintiffs’ injuries and none of the nurses or others who were actually employed by the hospital did anything wrong. A failure to inform Mr. Strach of the risks involved or malpractice during the surgery, if any, was committed only by Dr. Yap and, perhaps, Dr. Africa. Since Dr. Africa was clearly not even an ostensible agent of the hospital, any liability of the hospital rested entirely upon a claim that Dr. Yap was an ostensible agent of St. John Hospital, a theory approved in Grewe v Mt Clemens General Hospital, 404 Mich 240 ; 273 NW2d 429 (1978).
Mr. Strach testified that Dr. Africa told him only that he must go immediately to St. John Hospital for surgery. His wife said the decision to admit her husband had already been made and an ambulance had been ordered when she talked to Dr. Africa. Dr. Africa arranged to have the surgery done by his friend, Dr. Yap, who said that he informed the Straches that he was an independent contractor. I think the evidence of ostensible agency was insufficient and that St. John Hospital should not be required to pay to the Straches $1,600,000 (the amount awarded by the jury less credit the trial court allowed for monies received from Dr. Africa) plus interest.
Plaintiffs’ lawyer sought to establish the "deep-pockets” doctrine of ostensible agency by referring to Dr. Yap and the doctors who assisted him as "St. John’s surgical team.” Open heart surgery, or other delicate operations, will always be done by a team of doctors in a hospital with an appropriate staff, operating room and equipment. Such surgery is not done on a table by a "Hawkeye” assisted *287 only by a nurse "Hotlips.” The chief surgeon is in charge and must be the captain of the team in sole control of the life and death decisions being made. To be held liable for the malpractice of a surgeon not actually employed by it, a hospital should be shown to have misled the patient who relied upon appearances, created by the hospital, that the negligent surgeon worked for it, as its employee, and would be subject to its control. There was no evidence in this case that St. John Hospital did anything to create an appearance that it employed Dr. Yap; and the hospital did nothing, except for having a good reputation, that was relied upon by Mr. Strach. It would be unreasonable for him to believe that the hospital would control how the surgery would be performed and that it would be responsible for a surgeon’s malpractice if something happened to go wrong during the operation.
In addition to the lack of sufficient evidence for a finding of ostensible agency the trial judge’s instructions were erroneous. SJI2d 30.01, defining "professional negligence” or "malpractice,” SJI2d 30.02, concerning "informed consent,” and SJI2d 15.01, defining "proximate cause,” should not have had their blanks filled in with "Dr. Yap and/or the surgical team” or "The cardiac surgeon or the cardiac team.” Rather, the blanks in these instructions shoiild have said "Dr. Yap” alone. Dr. Africa could not be an ostensible agent of the hospital and there was no evidence of negligence on the part of any of the others on the so-called surgical team assisting Dr. Yap. These instructions permitted the jury to impose liability on the hospital because Dr. Africa, as part of the surgical team, did not obtain informed consent or because someone on the team, other than Dr. Yap or Dr. Africa, was at fault despite an absence of any evidence to support that. Also, because of the confusing nature *288 of the ostensible agency doctrine, the instructions should have included the hospital’s request that the jury be instructed that actual agency was not claimed so the instructions would clearly explain that the hospital could only be held liable if it had created an appearance, reasonably relied upon by Mr. Strach, that Dr. Yap was one of its employees.
Perhaps our Supreme Court will accept this case to reconsider and limit the ostensible agency basis for liability without fault and will indicate what the instructions should be when such a claim is made.
The parties’ injuries and damages are great and tragic, but it is also tragic to make a hospital pay, with interest, $2,000,000, more or less, for the result of an independent surgeon’s malpractice, or failure to get an informed consent, when the unfortunate result was in no way the hospital’s fault and when there is no just reason to hold it financially responsible.
Finally, I agree that the trial judge could allow plaintiffs’ lawyer to ask leading questions of Dr. Africa even though it was apparent that Dr. Africa wanted to settle for the limits of his insurance to avoid personal liability. At the time of his testimony, Dr. Africa was technically an adverse party. However, I believe the Michigan Rules of Evidence, especially MRE 611, supersede the adverse witness statute, MCL 600.2161; MSA 27A.2161. Lawyers and judges should stop referring to the statute. The Michigan Rules of Evidence govern how witnesses are questioned.