Vargo v. Sauer

J. R. Ernst, J.

(dissenting). I concur in the opinion of the majority that Harold Sauer is immune from tort liability for alleged medical malpractice arising out of his employment as a member of the faculty of the Michigan State University College of Human Medicine. However, I respectfully suggest that this holding should not be entirely dispositive of the case.

In his brief on appeal, Sauer admits that "he provides inpatient medical care as an employee of *402msu and in conjunction with the Michigan State University/St. Lawrence Hospital Family Practice Residency Program” to ob-gyn patients at St. Lawrence Hospital. Sauer further contends that "while providing treatment” to plaintiffs decedent, he "was actively engaged in providing instruction to residents who attended” the decedent.

Dr. Sauer’s claim of immunity is wholly predicated upon his employment with the Michigan State University School of Medicine. However, statutory immunity is granted only to the individual who is an "employee of a governmental agency” and who causes injury "while in the course of employment.” MCL 691.1407(2); MSA 3.996(107)(2).

"Governmental agency” is defined to mean "the state, political subdivisions, and municipal corporations.” MCL 691.1401(d); MSA 3.996(101)(d). Joint ventures, partnerships, and other cooperative activities between a governmental agency and one or more nongovernmental entities are not within the definition of "governmental agency,” and have not been afforded a legislative grant of immunity. Consequently, the officers, employees, and other agents of such combined state-private endeavors, when acting on behalf of or in the course of employment therewith, also lack immunity from liability for tortious acts.

It is well established in the law of agency that an agent may concurrently act for two principals. Adams Mining Co v Senter, 26 Mich 73 (1872). A physician may be simultaneously an employee of a governmental agency and also an employee or agent of a private entity under contract with the governmental agency. Or, indeed, he may be also the employee or agent of a joint governmental/ private enterprise. Although "the physician may *403be an agent of a public hospital, if he also is the employee or agent of a private entity under contract with the public agency, the physician may nonetheless be subject to liability in his capacity as an agent or employee of the private entity . . . Rambus v Wayne Co General Hosp, 193 Mich App 268, 273; 483 NW2d 455 (1992), reaffirmed (On Rehearing), 197 Mich App 480; 495 NW2d 835 (1992).

I am persuaded that we must recognize plaintiffs contention that, at the time Sauer provided medical services to plaintiff’s decedent, Sauer was acting not merely in the course of his employment with Michigan State University, but also as an agent of St. Lawrence Hospital or the Michigan State University/St. Lawrence Hospital Family Practice Residency Program. Plaintiff did attempt to raise this issue by her motion for further discovery before the trial court entered its final order granting summary disposition for defendant Sauer. A grant of summary disposition "is premature if granted before discovery on a disputed issue is complete.” Dep’t of Social Services v Aetna Casualty & Surety Co, 177 Mich App 440, 446; 443 NW2d 420 (1989).

Sauer’s admissions appear to establish that he provided medical services to plaintiffs decedent at St. Lawrence Hospital, a private institution, in his capacity as an agent of the Michigan State University/St. Lawrence Hospital Family Practice Residency Program and while instructing St. Lawrence Hospital resident physicians.

I would reverse and remand for further proceedings limited to plaintiffs claims of medical malpractice arising from Sauer’s activities as an agent of St. Lawrence Hospital or the Michigan State *404University/St. Lawrence Hospital Family Practice Residency Program.