Michigan Supreme Court To Consider Significant Medical Malpractice Issues

• Published date: 09 December 2021
• Law Firm: Rhoades McKee PC
• Author: Mr J.R. Poll

The Michigan Supreme Court (MSC) recently entered orders in two cases signaling its intent to consider two important issues in medical malpractice litigation. On October 20, 2021, the MSC granted the plaintiff's application for leave in Markel v William Beaumont Hospital from the Court of Appeals' unpublished opinion affirming the trial court's order dismissing claims of vicarious liability against the hospital based on the conduct of a hospitalist working as an independent contractor. On October 22, 2021, the MSC granted oral argument on the defendants' application for leave in Horn v Swofford from the Court of Appeals' published opinion finding that the one most relevant specialty for expert qualification under MCL 600.2169(1) was neuroradiology rather than diagnostic radiology. Opinions from the MSC in these two cases could produce significant changes in the applicable standards for hospital vicarious liability (commonly known as "Grewe" liability) and application of MCL 600.2169(1) to expert qualification in cases involving multiple specialties and/or subspecialties.

Markel v William Beaumont Hospital

The MSC issued its seminal opinion establishing the framework for evaluating ostensible agency claims against hospitals in Grewe v Mt. Clemens Gen Hosp, 404 Mich 240 (1978). The elements for an ostensible agency claim outlined in Grewe have been distilled by the Court of Appeals to the following:

1. the person dealing with the agent must do so with belief in the agent's authority and the belief must be reasonable;
2. the belief must be generated on some act or neglect of the hospital; and
3. the person relying on the agent's authority must be free of negligence.

Chapa v St. Mary's Hosp of Saginaw, 192 Mich App 29 (1991). The Grewe standard has been the subject of numerous Court of Appeals opinions that have refined the framework for hospital ostensible agency claims over the last 40 plus...