In Grimmer v Lee, et al ___ Mich
App ___ (#318046, 3/26/2015) the Court of Appeals held that the circuit court
should not have summarily dismissed the vicarious hospital liability claims
stemming from a doctor’s negligence for two reasons. First, none of the
defendants filed a motion seeking summary disposition. Second, had such a
motion been filed, it would have been unsuccessful. In Grimmer the
hospital summarily requested summary disposition after the dismissal of the
underlying doctor because of lack of service.
In a medical malpractice case, “[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.” Cox v Flint Bd of Hosp Managers, 467 Mich 1, 11 (2002). As
explained in Nippa v Botsford Gen Hosp, 257 Mich App 387, 392 (2003),
“the law creates a practical identity between a principal and an agent, and, by
a legal fiction, the hospital is held to have done what its agents have done.”
In Cox and Nippa, the defendant hospitals were charged with the
vicarious liability of nurses or physicians who were not named as individual
defendants.
In Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 294-295
(2007), the Supreme Court elucidated, “Nothing in the nature of vicarious
liability . . . requires that a judgment be rendered against the negligent
agent. Rather, to succeed on a vicarious liability claim, a plaintiff need only
prove that an agent has acted negligently.” As these cases demonstrate, a
plaintiff need not necessarily name the agent as a defendant when suing the
principal. Alternatively stated, a plaintiff may elect to sue the principal
alone, or to sue the principal and the agent together. The dismissal of a cause
of action against a doctor for lack of service is not a decision on the merits
and thereby not a basis for summary disposition for the hospital.
