Estate of Rebecca Baker-Olson v. James Martin Md

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 STATE OF MICHIGAN COURT OF APPEALS ERIC OLSON, Personal Representative of the UNPUBLISHED ESTATE OF REBECCA BAKER-OLSON, June 20, 2025 10:35 AM Plaintiff-Appellant, v No. 370069 St. Clair Circuit Court JAMES MARTIN M.D., AMY STOREY N.P., and LC No. 21-001873-NH MCLAREN PORT HURON CENTER FOR CARDIOVASCULAR AND THORACIC SURGERY, Defendants, and MCLAREN PORT HURON, Defendant-Appellee. Before: LETICA, P.J., and MURRAY and PATEL, JJ. PER CURIAM. In this medical malpractice case, plaintiff, Eric Olson, Personal Representative of the Estate of Rebecca Baker-Olson, appeals by leave granted1 the order granting summary disposition to defendant, McLaren Port Huron, under MCR 2.116(C)(10), and dismissing McLaren from the case. We reverse and remand. 1 Estate of Rebecca Baker-Olson v James Martin M.D., unpublished order of the Court of Appeals, entered April 9, 2024 (Docket No. 370069). -1-  I. FACTUAL BACKGROUND Rebecca Baker-Olson presented to Harbor Beach Community Hospital complaining of chest pain and pressure radiating to her arms. She was subsequently transferred to McLaren. While at McLaren, Baker-Olson had a consultation with Dr. Beeravolu Reddy, who recommended aortocoronary bypass surgery. A surgical consultation took place and the report, signed by defendant, Dr. James R. Martin, stated: “At this point in time we recommend urgent coronary artery bypass grafting.” Baker-Olson’s surgery was scheduled for two days later. During the consultation, Martin informed Baker-Olson and her husband, Eric Olson, that he performed cardiac surgeries “all over the thumb,” stating “[i]t didn’t matter what hospital you went to you would have gotten me anyway.” Baker-Olson remained at McLaren pending her surgery. While awaiting surgery, Baker-Olson suffered cardiopulmonary arrest and died. Plaintiff brought a complaint for vicarious liability against, among others, McLaren. McLaren moved for summary disposition under MCR 2.116(C)(10), arguing the evidence did not establish McLaren was vicariously liable for allegations made against Martin. The trial court granted summary disposition, in favor of McLaren, reasoning: The Court has reviewed the, the Motion and the Response and the relevant case law and although the court’s decision in [Markel v William Beaumont Hosp (On Remand), unpublished per curiam opinion of the Court of Appeals, issued January 4, 2024 (Docket No. 350655) (Markel III)][2] is not controlling, the Court does find it persuasive. And relying on the language and the principles set forth in that decision, the Court is of the opinion and does find that there is no genuine issue of material fact as to whether [] Dr. Martin was an agent of, of McLaren Port Huron Hospital. The facts indicate he was not. II. STANDARD OF REVIEW “We review de novo motions for summary disposition brought under MCR 2.116(C)(10).” Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). 2 In Markel v William Beaumont Hosp, unpublished per curiam opinion of the Court of Appeals, issued April 22, 2021 (Docket No. 350655) (Markel I), we considered whether a hospital could be held vicariously liable for alleged medical malpractice of a doctor under a theory of ostensible agency. We held the plaintiff did not reasonably believe the doctor was an agent of the hospital. Id. at 6-7. Markel v William Beaumont Hosp, 510 Mich 1071 (2022) (Markel II), reversed Markel I, holding we misapplied Grewe v Mount Clemens Gen Hosp, 404 Mich 240; 273 NW2d 429 (1978). On remand, in Markel III, we affirmed summary disposition in favor of the hospital on the basis of lack of reliance. Markel III, unpub op at 8-9. Leave to appeal is currently pending. Markel v William Beaumont Hosp , ___ Mich ___; 10 NW3d 650 (2024). -2-  A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a claim. When considering such a motion, a trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion. A motion under MCR 2.116(C)(10) may only be granted when there is no genuine issue of material fact. A genuine issue