Medical malpractice; Vicarious liability; Actual & ostensible agency; Whether amending the complaint would be futile; The misnomer doctrine; MCL 600.2301; Mootness; The Professional Services Agreement (CMU Agreement)

The court held that the trial court erred by finding no genuine issue of material fact existed as to whether a nonparty doctor (Kais) was an actual agent of defendant-St. Mary’s. It also erred in “summarily disposing of plaintiffs’ ostensible-agency claim” as to Dr. Kais. But it did not err by holding no genuine issue of material fact existed as to whether another nonparty doctor (Kottamasu) was St. Mary’s actual or ostensible agent. However, the trial court abused its discretion by determining amending the second amended complaint on the question of actual and ostensible agency would be futile. This medical malpractice case arose out of the alleged negligent treatment of plaintiffs’ decedent after she presented to the ER of St. Mary’s. As to whether Dr. Kais was an actual agent of St. Mary’s, plaintiffs pointed to an agreement (the CMU Agreement) “between CMU Partners and St. Mary’s as proof that St. Mary’s exercised sufficient control over Dr. Kais to establish an agency relationship.” The court concluded “the terms of the CMU Agreement, together with Dr. Kais’s employment agreement with CMU Partners, create a genuine issue of material fact for the jury.” However, it could not “be said St. Mary’s exerted control over ‘the manner or methodology’ of the treatment provided by Dr. Kottamasu at the time of the alleged malpractice.” As to whether Dr. Kais was St. Mary’s ostensible agent, the consent-for-services agreement “would have been enough to put plaintiffs on notice that some physicians present at the hospital were not agents of the hospital. But, it did not specify whether the specific physicians who treated or diagnosed decedent were agents or employees of St. Mary’s. This is particularly important considering there is no evidence decedent had a preexisting relationship with any of her treating physicians.” But as to whether Dr. Kottamasu was St. Mary’s ostensible agent, it could not “be said that decedent had a reasonable belief Dr. Kottamasu was an agent of St. Mary’s.” Affirmed in part, reversed in part, and remanded.