Michigan Appellate Court Remands Medical Malpractice Case For Jury To Determine Agency Issue

Appellate Court Remands Malpractice Case For Jury To Determine Agency Issue: The 56-year-old plaintiff underwent surgical removal of her parathyroid glands by Dr. Abdelkader Hawasli. According to Dr. Hawasli, he told plaintiff there was a possibility that he might also have to remove her thyroid gland and that she consented to such a procedure. By contrast, plaintiff testified that she explicitly told Dr. Hawasli during a discussion about the surgery that she would not consent to the removal of her thyroid due to the known risk of damage to her larynx because her job as a casino card dealer required that she be able to speak clearly and loudly.

During the surgery, Dr. Hawasli removed plaintiff’s thyroid and plaintiff alleges that as a result she suffered injury to her laryngeal nerve causing difficulty speaking as well as drinking and breathing. Plaintiff filed suit against Dr. Hawasli, Hawasli’s P.C. (Hawasli and Associates Surgical Specialists, P.C.), Ascension Medical Group (“AMG”), and St. John Hospital. AMG filed a summary disposition motion, arguing that there was no basis to impose vicarious liability because AMG did not control Dr. Hawasli’s medical decisions. Another summary disposition motion filed by St. John Hospital similarly argued that Dr. Hawasli was not an actual or ostensible agent of St. John; he merely used the hospital as a site for the surgery, and plaintiff looked to him, not the hospital, for treatment.

The State of Michigan Court of Appeals (“Michigan Appellate Court”) held in its unpublished opinion dated June 1, 2023: “We conclude the terms of the PSA [professional services agreement] between AMG and Dr. Hawasli’s P.C., create a question of fact for the jury as to agency. The PSA provides that Dr. Hawasli’s P.C. may not alter its services without consulting with AMG and that AMG “shall make the final decision in a manner consistent with AMG’s policy and procedures.” Section 1.2. It further provides that the physicians are “required to comply with any policy, procedure, bylaw, ethical or religious directive, program or other rule or required of [AMG.]” Section 1.5. It sets forth credentialing standards for the physicians (section 1.4), states that AMG and not the physicians shall retain and control the patients’ medical records (section 2.5), that the physicians may not provide services other than those provided at the AMG clinic, i.e., the contract is exclusive (section 2.8), that AMG will select the practice management electronic office software to be used, that the practice will transition to electronic medical records paid for by AMG (section 3.1), and that AMG will receive all payments for the medical services provided (section 3.1). These provisions show that AMG exercised far more than a de minimis degree of control over Dr. Hawasli’s practice.”

However, the Michigan Appellate Court further held: “We conclude, however, that the PSA does not create a question of fact regarding agency as to St. John Hospital because St. John Hospital is not a party to that contract, and so it cannot be bound by the PSA’s terms. Although St. John Hospital and AMG are affiliated entities, “[i]t is a well-recognized principle that separate corporate entities will be respected.” Seasword v Hilti, Inc, 449 Mich 542, 547; 537 NW2d 221 (1995). Plaintiff relies solely on the PSA to show vicarious liability, and she has not produced other evidence indicating that St. John Hospital had any level of control over Dr. Hawasli or his practice. Accordingly, we conclude that the trial court erred by denying summary disposition to St. John Hospital of plaintiff’s claims of vicarious liability.”

Informed Consent Claim

The Michigan Appellate Court held: “It is difficult to see, at least given the facts of this case, how a failure to adhere to the clear limits on surgery set by the patient requires medical judgment. If a jury were to conclude that plaintiff did in fact tell Dr. Hawasli that she would not consent to removal of her thyroid, then a verdict finding ordinary negligence would not be improper. If, on the other hand, the jury concludes that plaintiff did not so advise Dr. Hawasli, then the claim based on ordinary negligence fails. However, to the degree plaintiff seeks to establish liability on the basis that Dr. Hawasli performed the surgery negligently rather than on her alleged affirmative refusal of consent, such a claim would sound in medical malpractice.”

Source Placido v. Hawasli, M.D., Docket No. 359890.

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