Wallace v. Garden City Osteopathic Hospital

V. J. Brennan, J.

Plaintiff appeals from the trial court’s grant of directed verdicts in favor of all defendants, Garden City Osteopathic Hospital, William Silverstone, and Otterbein Dressier, at the close of plaintiffs proofs.

The instant case is a medical malpractice action. Plaintiff alleged that the named defendants were negligent in failing to properly diagnose and treat cancer of the decedent’s cervix. Prior to trial, plaintiff entered into settlement with two other *215physicians-defendants, Dr. Auth and Dr. Walczak. These are the physicians who actually performed the surgery and post-operative care. Another physician, Dr. Simmons, was dismissed voluntarily by plaintiff. Plaintiff thereafter proceeded to trial against the remaining defendants: the hospital, Silverstone, and Dressier. At the close of plaintiff’s proofs, all these defendants were granted motions for directed verdicts. Plaintiff appeals as of right.

Although a multiplicity of issues are raised on appeal by both appellant and appellees, our affirmance of the propriety of the trial court’s direction of verdicts for the defendants is dispositive and, hence, we need discuss only this facet of the appeal.

On appeal from a directed verdict, the question is, considering the evidence in a light most favorable to the plaintiff, whether a prima facie case of liability is established. Patelczyk v Olson, 95 Mich App 281, 283; 289 NW2d 910 (1980), Blanchard v Monica1 Machinery Co, 84 Mich App 279, 282; 269 NW2d 564 (1978), Zanzon v Whittaker, 310 Mich 340; 17 NW2d 206 (1945).

In a medical malpractice action, subject to limited exceptions which are not herein relevant, a plaintiff is required to use expert testimony to establish the standard of professional care and a breach of that standard. Francisco v Parchment Medical Clinic, P.C., 407 Mich 325; 285 NW2d 39 (1979), Lince v Monson, 363 Mich 135; 108 NW2d 845 (1961), Patelczyk, supra, 283, Bivens v Detroit Osteopathic Hospital, 77 Mich App 478, 488; 258 NW2d 527 (1977), rev’d on other grounds 403 Mich 820 (1978). The plaintiff must also show by medical evidence that the physical condition for which he claims damages was caused by the alleged negligence of the defendant. Moore v Foster, 96 Mich *216App 317, 321; 292 NW2d 535 (1980), rev’d on other grounds 410 Mich 863 (1980), Miles v Van Gelder, 1 Mich App 522, 536; 137 NW2d 292 (1965). In Michigan, the required expert testimony may be elicited from plaintiffs own experts or from the defendant physician. Patelczyk, supra, 284, Mitz v Stern, 27 Mich App 459, 464; 183 NW2d 608 (1970), Giacobazzi v Fetzer, 6 Mich App 308; 149 NW2d 222 (1967), lv den 379 Mich 770 (1967). Absent the production of this requisite expert testimony as to the elements of medical malpractice, the plaintiff fails in its burden of establishing a prima facie case of liability for jury submission and, hence, is properly subject to a motion for directed verdict.

Applying the above principles of law, we now review the propriety of the trial court’s grant of separate directed verdicts for each defendant.

We address first the trial court’s grant of a directed verdict in favor of defendant Dr. Silver-stone. The primary controversy centered around the question of whether Dr. Silverstone, a general practitioner, was medically obligated to do Pap smears and pelvic examinations or at least to document that they were being done when the patient told him that her gynecologist was performing such tests. The other alleged malpractice of Dr. Silverstone was his failure to discover a tumor when he did perform a Pap smear and pelvic examination on June 11, 1973.

On this record, we affirm the trial court’s grant of directed verdict as to Dr. Silverstone. Assuming, arguendo, that Dr. Silverstone was negligent on either ground, the record is barren of any expert testimony showing that such negligence was causally related to decedent’s death. In order to recover for the alleged negligence of a physician, a *217plaintiff must come forth with expert testimony to substantiate the alleged relationship between the negligence and the injury. Ghezzi v Holly, 22 Mich App 157, 163; 177 NW2d 247 (1970). In the instant case, plaintiff failed to show by expert testimony that any of the alleged negligence of Dr. Silver-stone caused, hastened, or enhanced the death of plaintiff’s decedent. Absent this showing, we find no error in the trial court’s grant of a directed verdict.

We next examine the prima facie case of liability as to Dr. Dressier, the pathologist who, allegedly, negligently examined and analyzed the tissue specimen sent to him after the total hysterectomy performed upon plaintiff’s decedent. Plaintiff claims that had Dr. Dressier properly analyzed the tissue he would have found evidence of a more extensive cancer than originally diagnosed. As proof of this negligent analysis, plaintiff points to the fact that Dr. Dressier failed to mention in his report a uterosacral ligament which the surgeon admittedly sent to him.

The record is remarkably silent as to what standard of care is required of a pathologist who examines tissue sent to him after a total hysterectomy. None of the experts produced by plaintiff were pathologists, although all had some knowledge of the area of pathology. No expert testified as to what the proper analytical procedure of the pathologist should be. Thus, plaintiff has failed to produce sufficient evidence as to the applicable standard of care.

Further, evidence of a breach of any standard is equally absent. There is no testimony as to what Dr. Dressier did during his analysis which he should not have done or as to what Dr. Dressier did not do which he should have done. Even if it is *218assumed that Dr. Dressier breached the standard of care by not including a reference in his report to the uterosacral ligament, there is no evidence to establish that this failure in any way caused or accelerated the death of plaintiffs decedent. Hence, the trial court did not err in directing a verdict for Dr. Dressier.

Plaintiff also argues that the defendant hospital was liable because, inter alia, a Tumor Board negligently concurred in the recommendation of Drs. Auth and Walczak that a hysterectomy and bilateral oophorectomy should be performed. The Tumor Board is a committee of physicians representing various departments of the hospital which reviews all malignancy cases. The trial court granted defendant hospital’s motion for a directed verdict on the grounds that the plaintiff had failed to establish an agency relationship between the Tumor Board and the hospital or that the hospital was derivatively liable for the alleged negligent acts of the Tumor Board.

The record in the instant case is bereft of any evidence that the Tumor Board was acting as an agent of the hospital.

The testimony at the time of trial demonstrated that the professional committees, such as the Tumor Board, consist of members of the medical staff. Physicians on the medical staff are not employees of Garden City Hospital, are not paid by the hospital, and do not contract with the hospital. The medical staff physicians are subject to bylaws, rules, and regulations developed by themselves and not by the hospital. The disciplining of staff physicians is handled by the independent medical staff itself, according to rules developed by the independent medical staff. The hospital and the medical staff are separate entities. The staff doc*219tors simply use the hospital facilities to render treatment to their patients.

Given the foregoing facts, there was no evidence of an agency relationship between the hospital and the Tumor Board. The general rule is that a hospital cannot be held liable for the actions of a physician who is an independent contractor and merely uses the hospital facilities to render treatment to his patients. Grewe v Mount Clemens General Hospital, 404 Mich 240; 273 NW2d 429 (1978), Heins v Synkonis, 58 Mich App 119; 227 NW2d 247 (1975). The record of this case demonstrates that this general rule applies to the relationship between the hospital and the Tumor Board. Consequently, there is no basis for holding the hospital vicariously liable for the acts of the Tumor Board members.

Similarly, the record is fatally defective because of the absence of any evidence on which plaintiffs could postulate an "agency by estoppel”. No evidence was produced that the decedent relied upon or was lead to believe that the Tumor Board would be acting as an agent of the defendant hospital. Grewe, supra, Howard v Park, 37 Mich App 496; 195 NW2d 39 (1972). Absent such a showing, the plaintiff failed to make a prima facie showing of agency by estoppel.

We have examined plaintiff’s remaining arguments and find them to be without merit. Hence we affirm the trial court’s grant of directed verdicts in favor of Dr. Silverstone, Dr. Dressier, and Garden City Osteopathic Hospital.

M. J. Kelly, P.J., concurred.