M Civ JI 30.30 Medical Malpractice: Vicarious Tort Liability Based on Ostensible Agency

A hospital is not generally responsible for the professional negligence of a [ physician / health care provider ] who has staff privileges at the hospital but is not an agent or employee of the hospital. However, a hospital may be liable for the professional negligence of a [ physician / health care provider ] if the hospital through its words, conduct, or omissions caused the plaintiff to reasonably believe that the [ physician / health care provider ] was an employee or agent of the hospital.

In order to establish the liability of the hospital under this theory, the plaintiff has the burden of proving:

(a) that [ name of physician or health care provider ] committed professional negligence in one or more of the ways claimed by the plaintiff;

(b) that the plaintiff sustained injury and damages;

(c) that the professional negligence of [ name of physician or health care provider ] was a proximate cause of the plaintiff’s injuries and damages;

(d) that the plaintiff reasonably believed that the [ physician / health care provider ] was acting as an agent or employee of the hospital;

(e) that the plaintiff’s belief that the [ physician / health care provider ] was an agent or employee of the hospital was created by words, conduct, or omissions of the hospital.

Your verdict will be for the plaintiff if the plaintiff has proved all of those elements.

Your verdict will be for the defendant if the plaintiff has failed to prove any one of those elements.

Note on Use

If there is an issue about whether the plaintiff “looked to the hospital to provide him with medical treatment” (Grewe v Mt Clemens General Hospital, 404 Mich 240, 250; 273 NW2d 429, 433 (1978)), then this instruction may need to be modified.

Comment

Grewe v Mt Clemens General Hospital, 404 Mich 240, 250; 273 NW2d 429, 433 (1978).

See also Howard v Park, 37 Mich App 496; 195 NW2d 39 (1972), lv den, 387 Mich 782 (1972); Revitzer v Trenton Medical Center, Inc, 118 Mich App 169; 324 NW2d 561 (1982), lv den, 417 Mich 995 (1983); Saseen v Community Hospital Foundation, 159 Mich App 231; 406 NW2d 193 (1986); Strach v St John Hospital Corp, 160 Mich App 251; 408 NW2d 441 (1987), lv den, 429 Mich 886 (1987), recon den, 430 Mich 866 (1988); Brackens v Detroit Osteopathic Hospital, 174 Mich App 290; 435 NW2d 471 (1989), lv den, 433 Mich 857 (1989); Chapa v St Mary’s Hospital of Saginaw, 192 Mich App 29; 480 NW2d 590 (1991); Setterington v Pontiac General Hospital, 223 Mich App 594; 568 NW2d 93 (1997).

History

M Civ JI 30.30 was added August 2000. Amended January 2020.