            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                           COURT OF APPEALS



CHARLES ABDULKARIM and SOUAD                                      UNPUBLISHED
GHRABY,                                                           October 24, 2019

              Plaintiffs-Appellees,

v                                                                 No. 341950
                                                                  Oakland Circuit Court
RONALD S. LEDERMAN, M.D., PLLC, doing                             LC No. 2016-151835-NH
business as LEDERMAN KWARTOWITZ
CENTER FOR ORTHOPEDICS, and RONALD
S. LEDERMAN, M.D., and MARK
KWARTOWITZ, D.O.,

              Defendants-Appellants,
and

ROYAL OAK SURGICAL CENTER, LLC,

              Defendant.



Before: MARKEY, P.J., and FORT HOOD and GADOLA, JJ.

FORT HOOD, J. (concurring).

       I concur in the result reached by the lead opinion, but given the amount of conflicting
testimony regarding the potential standards of care, particularly with respect to delegation, I
would choose to address defendants’ veiled argument that they did not owe a duty in this case
because placement of the grounding pad was delegated to operating room staff. Defendants
focus much of their brief on appeal on the alleged lack of evidence concerning the standard of
care, but underlying that argument is an implication that they could not owe a duty where the
responsibility of placing grounding pads typically falls on staff. I would conclude that, in
addition to the issue analyzed in the lead opinion, the trial court was also correct to rely on
Orozco v Henry Ford Hosp, 408 Mich 248, 253; 290 NW2d 363, 365 (1980), as a separate
ground for denying defendants’ motion for summary disposition.



                                              -1-
        In Orozco, our Supreme Court held that a surgeon performing a surgery has a “non-
delegable duty to see that the operation [is] performed with due care.”1 Orozco, 408 Mich at
253. Indeed, long settled caselaw from the Michigan Supreme Court recognizes that, under
certain circumstances, physicians can be held responsible for the actions of their employees. In
Barnes v Mitchell, 341 Mich 7, 10, 11; 67 NW2d 208 (1954), the plaintiff sued the defendant
chiropractor for negligence after he was severely burned when an employee of the defendant’s
office took an X-ray of the defendant’s hands. After the trial court granted the defendant’s
motion for a judgment notwithstanding the verdict, the Supreme Court observed that the
employee was using the defendant’s clinic and X-ray machine to administer treatment to the
plaintiff, the defendant’s patient, “and there is every reason to conclude that she thought she was
furthering her employer’s interest in so doing.” Id. at 12. Even if the employee could be said to
have exceeded the scope of her authority in administering the X-ray treatment to the plaintiff, the
Court recognized that the defendant would not be absolved of liability for negligence. Id. at 13.
        The Barnes Court quoted language from an earlier decision in Riley v Roach, 168 Mich
294; 134 NW 14 (1912):

       “The phrase ‘in the course or scope of his employment or authority,’ when used
       relative to the acts of a servant, means while engaged in the service of his master,
       or while about his master’s business.” [Barnes, 341 Mich at 13, quoting Riley,
       168 Mich at 307-308.]

After considering additional precedent addressing “general principles controlling responsibility
in master and servant cases[,]” the Supreme Court rejected the plaintiff’s contention that a
physician or doctor’s responsibility is limited only to actions “committed by the assistant who is
working under the direction of the doctor.” Id. at 17-18.

       ‘A physician is responsible for an injury done to a patient through the want of
       proper skill and care in his assistant, and through the want of proper skill and care
       in his apprentice, agent, or employee. The fact that a physician’s assistant is a


1
  In Orozco, after the plaintiff suffered an injury to his testicle during surgery, the trial court
granted the defendants’ motion for directed verdict on the basis that expert evidence of the
standard of care was not presented, the Court of Appeals affirmed, but the Michigan Supreme
Court reversed. Orozco, 408 Mich at 249. The defendants had argued that the plaintiff did not
present evidence as to the standard of care of one of the doctors operating on the plaintiff. Id. at
251. Addressing the argument concerning the standard of care, the Supreme Court noted that the
plaintiff testified that he heard one of the physicians operating on him admit to making a mistake
during surgery, and because the surgeon regarding whom the standard of care was at issue was
“in charge of the operation[,]” even if he did not make the statement himself, he could not
delegate the duty to ensure that the surgery was performed with due care. Id. at 251, 253.
Because the plaintiff presented the fact of the injury, medical expert testimony explaining what
caused the injury and the admission by one of the operating doctors, the Supreme Court
concluded that the trial court erred in granting a directed verdict in favor of the defendants. Id. at
250-251, 253.


                                                 -2-
       member of the same or a similar profession does not make the rule of respondeat
       superior inapplicable, and a physician is liable not only for negligence of laymen
       employed by him, but also for the negligence of nurses or other physicians in his
       employ.’ [Id. at 18, quoting 70 CJS Physicians and Surgeons, § 54, p 978
       (emphasis added).]

        Considering precedent from other states applying the theory of respondeat superior to
physicians and surgeons and holding physicians liable for the actions of their employees or
assistants—even if such actions exceeded the scope of their authority—the Supreme Court stated
that because there were no state statutory provisions “applicable to the question presented to this
Court,” the common law was determinative and could only be abandoned by “legislative
enactment rather than by a decision of this Court.” Id. at 20.2 The Supreme Court ultimately
concluded that “the defendant’s negligence in this case was established” given that the record
supported the conclusion that the defendant authorized the X-ray treatment to be performed on
plaintiff, and evidence established that the employee administered the X-ray treatment “within
the scope of her employment and to further the interest of the defendant rather than her own
interest.” Id. at 20-21. Under such circumstances, the Supreme Court reversed the trial court’s
judgment for the defendant notwithstanding the verdict. Id. at 21.

        More recently, in Laster v Henry Ford Health Sys, 316 Mich App 726, 734-735; 892
NW2d 442 (2016), this Court, in the context of considering whether a hospital was vicariously
liable for the alleged negligence of a physician who worked as an independent contractor, set
forth the governing legal principles with respect to respondeat superior and vicarious liability.

       Generally, Michigan law will impose liability upon a defendant only for his or her
       own acts of negligence, not the tortious conduct of others. However, an exception
       exists under the theory of respondeat superior, wherein an employer may be liable
       for the negligent acts of its employee if the employee was acting within the scope
       of his employment. Hamed v Wayne Co, 490 Mich 1, 10–11; 803 NW2d 237
       (2011); Hekman Biscuit Co v Commercial Credit Co, 291 Mich 156, 160; 289
       NW 113 (1939).

                Similarly, in the absence of an employer-employee relationship, vicarious
       liability may also attach through the concept of agency. As this Court has
       explained:

       A principal may be vicariously liable to a third party for harms inflicted by his or
       her agent even though the principal did not participate by act or omission in the
       agent’s tort. Vicarious liability is indirect responsibility imposed by operation of
       law. Courts impose indirect responsibility on the principal for his or her agent’s
       torts as a matter of public policy, but the principal, having committed no tortious



2
  My independent research of the pertinent provisions of the Revised Judicature Act, MCL
600.101 et seq., also did not reveal any statutory provisions on point.


                                                -3-
       act, is not a “tortfeasor” as that term is commonly defined. Because liability is
       imputed by law, a plaintiff does not have to prove that the principal acted
       negligently. Rather, to succeed on a vicarious liability claim, a plaintiff need only
       prove that an agent has acted negligently.[3] Concomitantly, if the agent has not
       breached a duty owed to the third party, the principal cannot be held vicariously
       liable for the agent’s actions or omissions. [Laster, 316 Mich App at 734-735,
       quoting Bailey v Schaaf (On Remand), 304 Mich App 324, 347; 852 NW2d 180
       (2014) (quotation marks and citations omitted), vacated in part on other grounds
       497 Mich 927 (2014) (footnote added).]

        In Whitmore v Fabi, 155 Mich App 333, 338; 399 NW2d 520 (1986),4 this Court, citing
Barnes, 341 Mich at 19, observed that “[p]hysicians and surgeons, like other persons, are subject
to the law of agency.” Physicians and Surgeons, § 130 (recognizing that a physician has a
“nondelegable duty of due care to his or her patient and is responsible for an injury done to a
patient through the lack of proper skill and care by his or her physician’s assistant, agent, nurse
or employee.”)

       A physician or other health-care provider generally is not liable for the negligence
       of hospital or other nurses, attendants, or interns, who are not his or her
       employees, particularly where the health-care provider has no connection
       therewith. . . . Vicarious liability depends on the right to direct or control the
       actions of another, and thus, an operating surgeon can be held liable for the acts of
       those assisting, even where the surgeon has no voice in their selection. [70 CJS
       § 131.]

Moreover, whether an agency relationship exists, and the scope of the relationship, remain
factual questions reserved to the trier of fact. Whitmore, 155 Mich App at 338. In an agency
relationship, “it is the power or ability of the principal to control the agent that justifies the
imposition of vicarious liability.” Laster, 316 Mich App at 735. Where there is an absence of
control, the actions of an independent contractor will not be imputed to an employer. Id. See
also 70 CJS

        In the present case, defendants’ implied contention that, as the surgeons performing
plaintiffs’ arthroscopic shoulder surgery, they had no duty or responsibility with respect to the
placement of the grounding pad is disingenuous and unpersuasive. This is particularly so given
that the grounding pad and the electrosurgical machine it is attached to play a pivotal role in the


3
  The existing record is replete with evidence that whoever placed the grounding pad did so
negligently, particularly given that Dr. Corn opined that the cause of plaintiff’s burn was the
incorrect placement of the grounding pad and Dr. Kohen shared his view that incorrect
placement of the grounding pad could be a possible cause of the burn.
4
  I recognize that because Whitmore was released before November 1, 1990, it is not binding
precedent, but is considered persuasive authority. MCR 7.215(J)(1); In re Stillwell Trust, 299
Mich App 289, 299 n 1; 829 NW2d 353 (2012).


                                                -4-
surgeon performing surgery on a patient. For example, during his testimony, Dr. Kwartowitz
testified in more detail concerning the operation of the electrosurgical unit, stating that it has a
setting for “coagulation” as well as for “cut[ting]” and the number that the surgeon sets on the
machine “will really be dependent on how much bleeding there is at the time of the surgery.”
The purpose of the electrosurgical machine, according to Dr. Kwartowitz is to “control any
bleeding.”

        On the machine itself, there are controls on a hand unit attached to the machine which a
physician holds and can use to adjust the power and frequency settings on the machine. Dr.
Kwartowitz acknowledged that the electrosurgical machine can cause burns, and that the
machine functions by sending electricity through the patient, which also passes through the
patient’s heart. Dr. Lederman also testified that the electrosurgical machine has a handpiece that
is held like a pencil, with a metal tip. He went on to elaborate how the device works:

       You press down the button that generates the electrical current, which creates an
       audible sound to let you know that there is thermal current being delivered and
       you use that to typically cauterize blood vessels to avoid bleeding.

        The electrosurgical machine also has the grounding pad attached, which is placed on the
patient during surgery. During a shoulder surgery, the electrosurgical machine is also used to
“ablate hypertrophic tissue” so that the surgeon operating can see the structures in the patient’s
body needed to perform the surgery. Given the important and serious role of the electrosurgical
machine during plaintiff’s surgery, defendants’ essential disclaiming of complete responsibility
with respect to the placement of the grounding pad—which connects plaintiff to the machine—is
not persuasive, particularly as the Supreme Court has stated that a surgeon cannot delegate his or
her responsibility to ensure that a surgery is performed with due care. Orozco, 408 Mich at 253.

        Pursuant to Barnes and Laster, because the record contains evidence that the pad was
placed by a third party under defendants’ supervision and the grounding pad was incorrectly
applied, genuine issues of material exist concerning not only whether (1) defendants breached
the standard of care by not ensuring that the grounding pad was properly placed on plaintiff
before beginning surgery, but whether (2) liability for the actions of the individual who placed
the grounding pad on plaintiff can be imputed to defendants. Again, Michigan law supports the
imposition of liability on defendants for the actions of another in placing the grounding pad,
either under a respondeat superior theory or pursuant to vicarious liability. Barnes, 341 Mich at
13, 18; Laster, 316 Mich App at 734-735. Moreover, the existence of an agency relationship, as
well as the nature of the relationship, are questions reserved to the factfinder. Whitmore, 155
Mich App at 338.



                                                             /s/ Karen M. Fort Hood




                                                -5-
