Douglas v. Pontiac General Hospital

*450J. M. Batzer, J.

(dissenting). I respectfully dissent. Plaintiff argues that defendant Baker is not entitled to governmental immunity because he was not an agent of the hospital and because his negligence consisted of ministerial rather than discretionary acts. I disagree.

Agents of a governmental entity are entitled to governmental immunity for discretionary acts performed within the scope of their authority in good faith. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 633-634; 363 NW2d 641 (1984). I reject plaintiff’s argument that defendant Baker’s status as an independent contractor precludes Baker from availing himself of the governmental immunity defense.1 While a distinction is sometimes drawn between agents and independent contractors as a limitation on the doctrine of respondeat superior, this is not so in every context. Indeed, one may be both an independent contractor and an agent. See generally 41 Am Jur 2d, Independent Contractors, § 2, p 741; 1 Restatement Agency, 2d, § 2(3), p 12.

Although defendant was "self-employed” as a private physician, he was, as a hospital requirement for privileges, periodically required to supervise hospital residency staff for two-week terms.

In defendant Baker’s affidavit, he asserted that his supervision and education of the residents was under the direction and control of the Director of Medical Education, Dr. Markowitz, and the Chief of the Department of Medicine. The residents gave direct care to the staff service patients and, as the supervising doctor, defendant Baker rendered direct care only when in his judgment he deemed it "necessary and appropriate.” Defendant Baker apparently determined that his direct care was not *451required for the decedent. Furthermore, in Dr. Markowitz’ affidavit, Dr. Markowitz explained the chain of control in connection with defendant Baker’s role as a supervising doctor and stated:

Although I had the authority to intervene in any problems with the supervision and education of the residents caring for Plaintiffs decedent, I was not made aware of any such problems.

Hence, although Dr. Markowitz did not interfere with defendant Baker’s control over the supervision of the residents in connection with the decedent, he had the "authority” to interfere.

As to whether Baker was acting as an agent of Pontiac General Hospital or an independent contractor, the test is the right of control. Howard v Park, 37 Mich App 496, 499; 195 NW2d 39 (1972), lv den 387 Mich 782 (1972). In Tuttle v Embury-Martin Lumber Co, 192 Mich 385, 399; 158 NW 875 (1916), our Supreme Court, in determining whether an individual was an independent contractor or an employee under the workmens’ compensation act, stated:

We are of the opinion that the test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent. 26 Cyc p 1547.

See also Van Pelt v Paull, 6 Mich App 618, 624; 150 NW2d 185 (1967).

Defendant Baker’s alleged negligence arose in the course of his duties on behalf of the hospital. Therefore, I would find that he acted as the hospital’s agent and was entitled to assert the immunity defense.

*452The principal-agent relationship is not negated simply because defendant Baker was required to exercise professional judgment in the performance of his supervisory duties. Quite unlike the imposition of liability under the doctrine of respondeat superior, the extension of immunity to the agents of governmental entities demands a showing of independent discretionary decision-making by the agent. Ross, supra, pp 634-635. Therefore, plaintiff’s reliance upon decisions of this Court holding that respondeat superior liability depends upon the degree of control a principal exercises over his agent is misplaced in the context of the immunity of governmental agents. Under plaintiff’s theory, even a salaried hospital staff physician would not be an agent, but an "independent contractor,” because such physicians make independent, professional judgment decisions. It should be remembered that ultimately only physicians, and not hospitals, practice medicine. Were plaintiff to prevail, governmental physicians would have no immunity for discretionary medical decisions. I had thought that this proposition was already decided contrary to plaintiff’s position in Canon v Thumudo, 430 Mich 326; 422 NW2d 688 (1988).

I also would find no merit in plaintiff’s contention that defendant Baker was not entitled to governmental immunity because his alleged acts of negligence were ministerial-operational. While medical decisions are discretionary in nature, the execution of those decisions is a ministerial act. Sayles v Baughman, 163 Mich App 58, 62; 413 NW2d 730 (1987), lv den 431 Mich 852 (1988). Here, defendant Baker’s involvement with the deceased was limited to the supervision and education of the residents providing treatment. Defendant Baker declined to render direct care in accor*453dance with hospital policy which left the decision whether to participate to the staff doctor’s judgment. Defendant Baker’s failure to render direct care to decedent and his judgment in supervising residents were discretionary medical decisions. Such discretionary acts are not transformed into ministerial acts simply because they deviate from a professional norm. Canon, supra, p 335.

I would affirm.

I also note that in paragraph 6 of his complaint plaintiff alleged that defendant Baker is an employee of Pontiac General Hospital.