                           STATE OF MICHIGAN

                           COURT OF APPEALS



WILLIAM BRISTOL, M.D.,                                            UNPUBLISHED
                                                                  March 24, 2015
              Plaintiff-Appellant,

v                                                                 No. 318628
                                                                  Macomb Circuit Court
HISHAM DADO, M.D.,                                                LC No. 2011-004245-NH

              Defendant,

and

ST. CLAIR SPECIALTY PHYSICIANS, P.C., and
DAVITA, INC., d/b/a DAVITA MACOMB
KIDNEY CENTER,

              Defendants-Appellees.


Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ.

PER CURIAM.

       In this medical malpractice action, plaintiff appeals by right the trial court’s order
granting summary disposition1 to defendant Davita, Inc. (“Davita”).2 We affirm.




1
  The trial court did not specify under which subrule it granted summary disposition. Davita
moved for summary disposition under both MCR 2.116(C)(8) and (C)(10). Because the trial
court considered material beyond the pleadings in making its ruling, we treat the grant of
summary disposition as being pursuant to MCR 2.116(C)(10). See Cuddington v United Health
Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519 (2012).
2
  Plaintiff also claims an appeal by right from a subsequent October 7, 2013 stipulated order
dismissing without prejudice plaintiff’s claims against defendants Dr. Hisham Dado, M.D. and
St. Clair Specialty Physicians, P.C. However, plaintiff does not present any arguments on appeal
related to that order. The October 7, 2013 order was a final order following which an appeal by
right could be taken. MCR 7.202(6)(a)(i). Plaintiff’s counsel indicated at the motion hearing on


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                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This action arose out of plaintiff’s dialysis treatment. Plaintiff, a medical doctor himself,
alleges that he suffered vestibular3 problems after receiving intravenous Gentamicin, an
antibiotic ordered by defendant Dr. Hisham Dado, M.D. (“Dado”), a nephrologist, during
dialysis at Davita. Dado was Davita’s medical director. Dado was also a partner in defendant St.
Clair Specialty Physicians, P.C (“St. Clair”).

        Since June 2008, plaintiff had been treated by Dr. Robert Provenzano, another St. Clair
nephrologist. Provenzano referred plaintiff for dialysis and gave plaintiff the names of two
dialysis centers, including Davita. Provenzano suggested that plaintiff select Davita because it
was closer to plaintiff’s home.

        Plaintiff began dialysis at Davita in early 2009. Shortly before plaintiff began the
dialysis, he had been hospitalized for an infection in a shunt, and a doctor had ordered that he
was to receive intravenous Vancomycin, an antibiotic, with his dialysis treatment. Plaintiff
received Vancomycin with his dialysis treatment at Davita through June 7, 2009. On or about
June 6, 2009, plaintiff began receiving Gentamicin, rather than Vancomycin, for four to five
weeks due to another blood-borne pathogen. Plaintiff stated in his deposition testimony that he
did not know who had ordered the Gentamicin. Dado stated at his own deposition that the
Gentamicin was ordered by an infectious disease physician and that he had called this physician
“regarding the amount of Gentamicin and for how long.” After receiving Gentamicin for four
weeks, plaintiff was hospitalized for vestibular symptoms, such as dizziness and inability to
stand. Thereafter, plaintiff was diagnosed with vestibular problems related to Gentamicin.
Plaintiff testified at the time of his deposition that he continued to have dizziness, nausea,
vomiting, loss of balance, and vision problems resulting from the Gentamicin he had received at
Davita.

        Plaintiff’s one-count complaint alleged (1) that Dado was negligent in failing to properly
monitor the Gentamicin and Vancomycin levels in plaintiff’s blood, and in failing to counsel
plaintiff regarding the risks and side effects of the antibiotics, and (2) that Davita and St. Clair,
through their agents, employees, and staff nephrologists, were negligent in failing to ensure that
appropriate policies and procedures were adopted and followed concerning the monitoring of
Gentamicin and Vancomycin, in failing to ensure a qualified medical staff oversaw the
administration of potentially ototoxic antibiotics, and in treating plaintiff. Davita moved for
summary disposition under MCR 2.116(C)(8) and (10), arguing that it was not vicariously liable
for any negligence by Dado because Dado was not an agent or employee of Davita. After a


Davita’s motion for summary disposition that, at least with regard to Dado, plaintiff’s claims had
been resolved. Plaintiff has thus abandoned appellate review of the subject of the October 7,
2013 order. See Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756
(2002).
3
  The vestibular system is the sensory system located in the inner ear that contributes to balance,
spatial orientation, and eye movement. See vestibular.org/understanding-vestibular-disorder
(last accessed December 30, 2014).


                                                -2-
hearing on Davita’s motion for summary disposition, the trial court held that Dado was not an
employee of Davita “for hemodialysis at that location” and that Dado had provided medical
treatment to plaintiff in his capacity as an employee of St. Clair. The trial court entered an order
granting summary disposition to Davita for reasons stated on the record, and dismissed all claims
against Davita with prejudice. The trial court subsequently dismissed without prejudice, by
stipulated order, plaintiff’s remaining claims against Dado and St. Clair.

       This appeal followed. Following oral argument, this Court ordered defendant Davita to
file under a seal (and to serve upon counsel for plaintiff) a copy of “its employment or
independent contractor agreement with defendant Hisham Dado, M.D.” See Bristol v Dado,
unpublished order of the Court of Appeals, issued January 15, 2015 (Docket No. 318628). The
Court further directed the parties to file supplemental briefs “addressing whether Dado was
acting as defendant-appellee Davita’s agent during his treatment of plaintiff based on the
contents of the contract.” Id. The parties have complied with that order.

                                 II. STANDARD OF REVIEW

         This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition. Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). A motion for
summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim. Maiden v
Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). When deciding a motion under
MCR 2.116(C)(8), the court considers only the pleadings. MCR 2.116(G)(5). The court accepts
all well-pleaded allegations as true and construes them in the light most favorable to the
nonmoving party. Maiden, 461 Mich at 119. The motion may be granted only where the claims
are “ ‘so clearly unenforceable as a matter of law that no factual development could possibly
justify recovery.’ ” Id., quoting Wade v Dep’t of Corrections, 439 Mich 158, 163, 483 NW2d 26
(1992). A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency
of a claim. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). A motion for
summary disposition under MCR 2.116(C)(10) should be granted if the pleadings, affidavits, and
other documentary evidence, when viewed in a light most favorable to the nonmovant, show that
there is no genuine issue with respect to any material fact. Id.; see MCR 2.116(G)(3) and (4). A
genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable minds might differ. Skinner,
445 Mich at 162.




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                                III. SUMMARY DISPOSITION
                      A. DADO AS ACTUAL AGENT OR EMPLOYEE

       Plaintiff argues that the trial court erred in granting summary disposition in favor of
Davita where questions of fact existed with respect to whether Dado was an actual agent or
employee of Davita.4 We disagree.

        As the party moving for summary disposition, Davita had the initial burden of
production. Quinto v Cross & Peters Co, 451 Mich 358, 361; 547 NW2d 314 (1996). Thus,
Davita was required to either (1) submit affirmative evidence that negated an essential element of
plaintiff’s claim, or (2) demonstrate to the court that plaintiff’s evidence was insufficient to
establish an essential element of plaintiff’s claim. Id. at 362. If the moving party meets its
burden, the burden then shifts to the opposing party to establish that a genuine issue of disputed
fact exists. Id.

        In support of its motion for summary disposition, Davita argued that Dado was an
independent contractor, not an employee. Davita further argued that Dado’s medical director
position had nothing to do with his treatment of plaintiff and that Dado’s treatment of plaintiff
was done solely in Dado’s capacity as an employee of St. Clair. Davita referred to Dado’s
deposition testimony that, as Davita’s medical director, he was required to meet with the facility
administrator, dietician, and social services several times a month, and to have “a basic big
meeting every month to make sure the dialysis orders and the patients are taken care of very well
with no interruption of service.” Defendants also noted Dado’s testimony that he was “[n]ot
necessarily” contractually obligated to have his dialysis patients treated at Davita. In addition,
defendants referred to Dado’s testimony that “[b]asically, I’m an employee of St. Clair Specialty
Physicians” and that he treated patients in that capacity. In response, plaintiff pointed to Dado’s
deposition testimony that he was Davita’s medical director, that he had a written contract with
Davita for the medical director position, and that he was paid an annual stipend by Davita for
being its medical director.

         In general, a facility that provides healthcare services is not vicariously liable for the
negligence of a physician who (1) is not an employee of the facility and (2) merely uses the
facility as the situs for treatment of his patient’s problems. See Grewe v Mt. Clemens General
Hospital, 404 Mich 240, 250-251; 273 NW2d 429 (1978). Here, the record shows that,
regardless of whether Dado was an employee or agent of Davita with regard to his position as
medical director, any claims that plaintiff had against Dado arose out of Dado’s provision of
medical treatment to plaintiff and did not arise from any conduct as Davita’s medical director. A



4
  Plaintiff argues that Davita admitted in its answer to the complaint that Dado was its agent or
employee. We disagree. Davita’s answer indicated that it lacked information sufficient to form
a belief as to the truth of the allegations that Dado was its agent or employee. Davita’s answer
complied with MCR 2.111(C) and had the effect of a denial. Plaintiff has not shown that Davita
admitted that Dado was its agent or employee.


                                                -4-
principal is only liable for the acts of its agent if those acts are committed in the scope of the
agency. St Paul Fire & Marine Ins Co v Ingall, 228 Mich App 101, 109; 577 NW2d 188 (1998).
It is undisputed that plaintiff had a pre-existing physician/patient relationship with St. Clair, at
least initially through Provenzano. Dado stated in his deposition that at Provenzano’s request he
“assumed the responsibility” for being plaintiff’s attending physician during his dialysis
treatments at Davita because plaintiff was one of his partner’s patients. Further, Dado’s position
with Davita as medical director did not require the provision of medical treatment to patients.
Finally, Davita was, at most, merely the situs for Dado’s provision of medical treatment, which
occurred as a result of his St. Clair partnership relationship with Provenzano. Thus, the trial
court correctly determined that, even if Dado was an agent or employee of Davita to the extent of
his medical director position, any medical treatment he may have provided to plaintiff was as an
agent or employee of St. Clair, and not as an agent or employee of Davita.

       The Agreement for Medical Director (“Agreement”) filed by Davita supports this
conclusion. In the first instance, it specifically identifies Dado5 as an independent contractor.
Although such a provision is not determinative, it may support the determination that a party is
an independent contractor. Buckley v Prof Plaza Clinic Corp, 281 Mich App 224, 234; 761
NW2d 284 (2008). Further, the Agreement indicates that Davita contracted with Dado to be its
medical director, and principally to provide specified management and clinical oversight and
supervisory services.6 It did not provide for Dado to treat dialysis patients as a provider of
medical nephrology services. The Agreement did not require that Dado use Davita’s location,
equipment, or staff for the provision of dialysis services to his or St. Clair’s patients. Further, the
Agreement is devoid of any evidence that Davita possessed the power to control or direct Dado’s
provision of medical treatment.

        Plaintiff argues that the Agreement supports a finding that Dado was an agent of Davita
because (1) the Agreement was with Dado’s professional corporation, not St. Clair; (2) the
Agreement restricted Dado from owning, operating, or in other ways participating in another
business providing dialysis services for a period of years, and additionally could not share
Davita’s information with other entities in competition with Davita or in a manner contrary to its
interests; (3) Dado had an office for his sole use at Davita, and was involved in hiring and
supervising clinic employees; and (4) equipment at the site was to be used solely for dialysis, not
the general practice of medicine. For reasons in part addressed elsewhere in this opinion, none
of these arguments convinces us that the trial court erred. For example, the provision of an
office for Dado’s use is of little relevance, as is the fact that the Agreement was with Dado’s



5
  The Agreement is actually between Davita and Dado’s professional corporation, Hisham Dado,
M.D., P.C. The Agreement indicates that Dado is joined in the Agreement “only to the extent set
forth in a signed Joinder to this Agreement.” No such “Joinder” accompanies the contract filed
with this Court. Dado signed the Agreement in his capacity as president of his professional
corporation, but not in his individual capacity.
6
 Davita employed no physicians or nephrologists for Dado to oversee or supervise, but rather
employed only non-physician providers of clinical services.


                                                 -5-
professional corporation; nor is it significant that a medical director agreement would require
that the dialysis equipment at a dialysis center be used for purposes of dialysis. The presence of
a contractual provision restricting the competitive use of Davita’s information is similarly
irrelevant in determining whether the medical treatment provided to plaintiff by Dado was
provided as an employee or agent of Davita.

        Additionally, although the presence of a noncompetition clause may support a finding
that a party is an employee, see Buckley, 281 Mich App at 237, the provision in this case does
not so demonstrate, or otherwise demonstrate that Dado was acting for Davita when he provided
medical treatment to plaintiff, but instead demonstrates that Dado’s provision of nephrology
services in fact was not on behalf of Davita, but instead was on behalf of St. Clair. The provision
in question solely restricts Dado insofar as relates to the provision of “Dialysis Services” (as
defined in the Agreement), but specifically does not restrict Dado (or his professional
corporation) in any respect relative to the professional practice of medicine, specifically
including nephrology. If the services that Dado provided for Davita included nephrology, one
surely would expect that the Agreement would not exempt those services from the
noncompetition restrictions of the Agreement. To the contrary, the exemption of medical and
nephrology services from the noncompetition restrictions demonstrates that Dado was not
performing medical or nephrology services in his capacity as medical director for Davita. There
simply is insufficient evidence in the record to demonstrate otherwise, or to raise a material
question of fact for submission to a jury.

        We therefore conclude that the Agreement supports the trial court’s conclusion that Dado
was not an agent or employee of Davita when he provided medical services to plaintiff. The trial
court thus did not err in dismissing plaintiff’s claims against Davita for vicarious liability arising
out of any actual agency or employment of Dado.

                              B. DADO AS OSTENSIBLE AGENT

       Plaintiff also argues that the trial court erred in granting summary disposition in favor of
Davita because a reasonable juror could conclude that Dado was an apparent or ostensible agent
of Davita for the purposes of medical treatment. We disagree.

        A medical care facility may be liable for the acts of its actual or apparent agents. See
Chapa v St Mary’s Hosp, 192 Mich App 29, 33; 480 NW2d 590 (1991). An apparent, or
ostensible, agency exists where “the principal intentionally or by want of ordinary care, causes a
third person to believe another to be his agent who is not really employed by him.” Grewe, 404
Mich at 252 (quotation marks and citation omitted). To demonstrate an ostensible agency,
plaintiff must show (1) that he had a reasonable belief that Dado was an agent of Davita, (2) that
his belief was generated by some act or neglect on the part of Davita, and (3) that he was not
guilty of negligence. Id. at 252-253; Zdrojewski v Murphy, 254 Mich App 50, 66; 657 NW2d
721 (2002). In other words, “the putative principal must have done something that would create
in the patient’s mind the reasonable belief that the doctors were acting on behalf of the defendant
hospital.” Van Stelle v Macaskill, 255 Mich App 1, 10; 662 NW2d 41 (2003); Chapa, 192 Mich
App at 34. “[A]n independent relationship between a doctor and a patient that preceded a
patient’s admission to a hospital precludes a finding of ostensible agency, unless the acts or
omissions of the hospital override the impressions created by the preexisting relationship and

                                                 -6-
create a reasonable belief that the doctor is an agent of the hospital.” Zdrojewski, 254 Mich App
at 66.

         Here, as stated above, plaintiff had a preexisting relationship with Provenzano and St.
Clair. Dado assumed the duties of Provenzano with respect to plaintiff’s treatment. Plaintiff
testified at his deposition that he did not know who employed Dado, but that no one ever
indicated that Dado was a Davita employee; rather he testified that he formed the impression on
his first day of dialysis that Dado was “[i]n charge of the clinic.” Plaintiff testified that Dado
never identified himself as a Davita employee and that Dado’s white coat did not have a Davita
decal or otherwise identify Dado as a Davita employee.

         Plaintiff failed to demonstrate a genuine issue of material fact with respect to whether
Dado was an ostensible agent of Davita. Although plaintiff argued that he did not have a
preexisting relationship with Davita, he did not submit any other evidence to indicate that that
Davita’s actions created a reasonable belief in plaintiff that Dr. Dado was acting on behalf of
Davita, at least insofar as it related to the provision of medical care, and thus failed to
demonstrate a factual dispute with respect to whether Dr. Dado was an ostensible agent of Davita
in that respect. Van Stelle, 255 Mich App at 10; Chapa, 192 Mich App at 34.

                 C. CLAIMS AGAINST DAVITA NOT INVOLVING DADO

        Finally, plaintiff argues that the trial court erred in dismissing his claims against Davita
regarding Davita’s liability for the negligence of Davita’s agents and employees other than Dado,
where Davita’s motion for summary disposition did not address or seek dismissal of such claims.
Plaintiff argues that his due process rights were violated by the trial court’s dismissal of these
claims because he did not have notice and a meaningful opportunity to be heard regarding their
dismissal. We disagree.

        Davita’s motion for summary disposition requested that the trial court “dismiss Plaintiff’s
Complaint as to Defendant Davita in its entirety.” In addition, at the summary disposition
motion hearing, Davita argued that plaintiff did not properly allege claims against Davita arising
from the conduct of anyone other than Dado because the only affidavit of merit filed was signed
by a nephrologist. Thus, plaintiff had notice and an opportunity to be heard on these issues, and
plaintiff has not shown that the dismissal of the claims violated his due process rights. See Hinky
Dinky Supermkt, Inc v Dep’t of Community Health, 261 Mich App 604, 606; 683 NW2d 579
(2004).

       Furthermore, Davita properly argues that the claims based on the negligence of its agents
or employees other than Dado were not supported by an affidavit of merit. Pursuant to
MCL 600.2912d, a medical malpractice action must be supported by an affidavit of merit
“signed by a health professional who the plaintiff’s attorney reasonably believes meets the
requirements for an expert witness” under MCL 600.2169. A medical malpractice plaintiff is
“required to submit an affidavit of an expert practicing or teaching in the same health care
profession as those accused of wrongdoing.” Sturgis Bank & Trust Co v Hillsdale Comm Health
Ctr, 268 Mich App 484, 491-492; 708 NW2d 453 (2005). Here, plaintiff testified at his
deposition that he was treated at Davita by Dado, an unnamed infectious disease physician, a
physician’s assistant, and a nurse; however the only affidavit of merit presented was signed by

                                                -7-
Dr. Robert Luke, a nephrologist. Thus, any claims based on the alleged medical negligence of an
individual other than Dado, the nephrologist, including negligence of Davita’s agents and staff
related to training, supervision, or failure to implement appropriate procedures for the
administration of medical treatment, were not properly before the court because they were not
supported by an affidavit of merit as required by MCL 600.2912d. See Sturgis Bank & Trust Co,
268 Mich App at 491-492; see also Bryant v Oakpointe Villa Nursing Ctr, 471 Mich 411, 428;
684 NW2d 864, 874 (2004). Further, although plaintiff argues that dismissal of those claims was
improper because defendant’s motion lacked any evidentiary support, Davita demonstrated in its
motion for summary disposition the absence of appropriate affidavits of merit, and submitted
with its reply brief the deposition testimony of Luke, wherein Luke stated that he was not an
expert on what sort of procedures should be implemented for the monitoring of patients receiving
Gentamicin, or the training and supervision of staff regarding such monitoring.

        Plaintiff further argues that Davita’s affidavit of merit challenge is untimely.
MCR 2.112(L)(2) provides that, unless the court allows a later challenge for good cause, all
challenges to an affidavit of merit “must be made by motion, filed pursuant to MCR 2.119,
within 63 days of service of the affidavit on the opposing party.” However, Davita did not
challenge the sufficiency of the affidavit filed by Dr. Luke; instead, Davita properly argued that
MCL 600.2912d should be applied to bar any claims not supported by an affidavit of merit. We
agree, and therefore find that the trial court properly granted summary disposition to Davita on
plaintiff’s claims of negligence arising out of conduct by Davita’s agents or employees other
than Dado.

       Affirmed.

                                                            /s/ Jane M. Beckering
                                                            /s/ Kathleen Jansen
                                                            /s/ Mark T. Boonstra




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