Alar v. Mercy Memorial Hospital

529 N.W.2d 318, 208 Mich. App. 518

• Court: Michigan Court of Appeals
• Decided: February 6, 1995
• Docket: Docket 139088, 139253
• Status: Published

Opinions

Cavanagh, P.J.

In Docket No. 139088, defendant Mercy Memorial Hospital appeals as of right from a January 18, 1991, judgment in favor of plaintiff, a March 8, 1991, order denying its motion for judgment notwithstanding the verdict (jnov), and a February 13, 1991, order assessing costs. Plaintiff Christopher Alar cross appeals as of right from the January 18, 1991, judgment in favor of defendant Northern Professional Emergency Physicians, P.C., and the February 13, 1991, order assessing costs. Plaintiff also cross appeals from the trial court’s denial of his motions to amend the special verdict, for jnov, and the grant of taxable costs to defendant Mercy Memorial Hospital. We vacate the judgment against Mercy Memorial Hospital and affirm the judgment in favor of Northern Professional Emergency Physicians.

In Docket No. 139253, defendant Gayl Godsell-Stytz, D.O., appeals as of right from the January 18, 1991, judgment against her and from the denial of her motion for jnov. The appeals were consolidated. We reverse.

FACTS

This case arises from plaintiff’s alleged attempted suicide and subsequent admission to the emergency room and psychiatric unit at Mercy Memorial Hospital on June 8, 1988. Plaintiff, who had been appointed to the United States Air Force Academy in March 1988, was a senior high school student at Catholic Central High School at the time of the incident. Plaintiff had been involved in an exclusive relationship with Jill Bodine. During the spring of 1988, plaintiff talked to Jill about harming himself. Plaintiff claimed that he would mention suicide to get Jill’s attention or divert it from any problem they may have been having at the moment. Jill testified, however, that she believed plaintiff had been unhappy for a few months and believed he was serious about harming himself.

On June 8, 1988, Jill informed plaintiff that she wanted to date other men in the fall because they were going away to separate universities. Plaintiff objected to this. After Jill left, plaintiff wrote a note suggesting that harm might befall him and he retrieved a gun from his parents’ room to make sure that Jill would take him seriously.

Plaintiff then went to the school and gave Jill the note while she was in a student meeting. Jill found plaintiff in a car in the parking lot and plaintiff had the gun in his hand. Plaintiff told Jill that if he could not stay with her, his life was not worth living. Jill attempted to get the gun, but plaintiff was able to keep it away from her. Jill then went back into the school and the principal approached the car and asked plaintiff to help him load some boxes. While plaintiff was in the hallway of the school, the police arrived and plaintiff was taken to Mercy Memorial Hospital.

While in the emergency room, Dr. Godsell-Stytz saw plaintiff, treated him, and they spoke about the Air Force Academy. Dr. Godsell-Stytz was familiar with the Air Force Academy because her husband was a graduate. Eventually, plaintiff was taken to Pineview Center, the psychiatric unit at Mercy Memorial Hospital.

Plaintiff voluntarily admitted himself into Pine-view under the care of Dr. Gary Koloff, a psychiatrist. Dr. Godsell-Stytz consulted with Dr. Koloff shortly after plaintiff was admitted. Dr. Godsell-Stytz told Dr. Koloff that she felt the Air Force Academy needed to be informed of plaintiff’s situation, but she did not tell Dr. Koloff that she intended to call the academy herself. Further, when she spoke with plaintiff in the emergency room, she did not ask for plaintiff’s permission to notify the Air Force Academy and she did not tell plaintiff that she intended to notify the academy.

Dr. Godsell-Stytz called the Air Force Academy and notified Lieutenant Colonel John F. Swiney, Jr., the director of cadet selections at the academy, of plaintiff’s admission to the hospital. Lt. Col. Swiney contacted the Department of Defense Medical Examination Review Board and advised them of plaintiff’s situation. After a review of plaintiff’s medical records, his admission to the Air Force Academy was revoked on June 27, 1988.

Plaintiff filed an action in the Monroe Circuit Court contending that Dr. Godsell-Stytz breached the physician-patient privilege, resulting in the loss of his appointment to the Air Force Academy, and that Dr. Godsell-Stytz’ actions constituted intentional interference with a business relationship. Derivative claims of vicarious liability were brought against Northern Professional Emergency Physicians, a company providing emergency room physicians to hospitals by contract, and Mercy Memorial Hospital. Plaintiff also claimed that Dr. Godsell-Stytz’ conduct breached a contract entered into between him and Mercy Memorial Hospital for which the hospital was liable independent of the vicarious liability claims.

Following a lengthy jury trial, the jury found that Dr. Godsell-Stytz was liable for breach of the physician-patient privilege and tortious interference with a business relationship, that Mercy Memorial Hospital was not vicariously liable for Dr. Godsell-Stytz’ tortious conduct, but that the hospital breached its contract with plaintiff, and that Northern Professional Emergency Physicians was not vicariously liable because Dr. Godsell-Stytz was not its employee. The jury awarded plaintiff $95,000 in damages. Following postjudgment proceedings regarding motions for jnov and costs and attorney fees, these appeals ensued.

DISCUSSION

DOCKET NO. 139088

Defendant Mercy Memorial Hospital raises nine issues in its brief; however, we find one issue to be dispositive and we vacate the judgment against Mercy Memorial. We agree with Mercy Memorial that the trial court erred in denying its motions for a directed verdict and jnov because plaintiff failed to prove the existence of a contract.

i

In reviewing a motion for a directed verdict, this Court views the testimony and legitimate inferences drawn therefrom in a light most favorable to the nonmoving party. Directed verdicts are appropriate only when no factual question exists upon which reasonable minds could differ. Brisboy v Fibreboard Corp, 429 Mich 540, 549; 418 NW2d 650 (1988). Similarly, if the evidence is such that reasonable minds could differ, then judgment notwithstanding the verdict is also improper. Davis v Wayne Co Sheriff, 201 Mich App 572, 579; 507 NW2d 751 (1993).

Plaintiffs claim against Mercy Memorial was premised on an alleged breach of contract. Upon his admission to Pineview, plaintiff was given a "Rights and Privileges” form that summarized his rights under the Mental Health Code. Plaintiff claims that this document is a contract entered into by himself and Mercy Memorial that Mercy Memorial breached when Dr. Godsell-Stytz called the Air Force Academy concerning plaintiffs admission to the hospital.

Mercy Memorial was required by MCL 333.20201; MSA 14.15(20201) to adopt a policy describing the rights and responsibilities of patients and to treat patients in accordance with that policy. Included in this policy is the patient’s right to confidential treatment of personal and medical records. MCL 333.20201(2)(c); MSA 14.15(20201)(2)(c). Additionally, Mercy Memorial was required by statute to keep confidential information acquired in the course of providing plaintiff with mental health services. MCL 330.1748; MSA 14.800(748). Therefore, the requirement that such duties be imparted to plaintiff was a preexisting duty under the statute. Because Mercy Memorial had a preexisting statutory duty to afford plaintiff these rights of confidentiality when plaintiff sought the services of the hospital and became a patient, this duty could not provide adequate consideration for any alleged contractual relationship. Mercy Memorial’s preexisting duty imposed by statute cannot be considered adequate consideration to create a contract. Powers v Peoples Community Hosp Authority, 183 Mich App 550, 554; 455 NW2d 371 (1990); Penner v Seaway Hosp, 169 Mich App 502, 510-511; 427 NW2d 584 (1988).

Thus, the trial court erred in denying Mercy Memorial’s motions for a directed verdict and jnov. Other than the rights and privileges document, plaintiff presented no evidence regarding the question of consideration supporting an alleged contract. Failing to prove one of the essential elements of a contract, plaintiff could not sustain his claim of breach of contract. We therefore vacate the judgment against defendant Mercy Memorial Hospital.

ii

In his cross appeal, plaintiff raises four issues. He first argues that the trial court erred in denying his motion for a directed verdict concerning whether Dr. Godsell-Stytz was an employee of Northern Professional Emergency Physicians. The jury specifically found that there was no employee-employer relationship between Dr. Godsell-Stytz and Northern Professional. We find that because the evidence presented a factual question with regard to this issue, the trial court did not err in denying plaintiffs motion for a directed verdict and all postjudgment motions related to this issue.

Contrary to plaintiffs assertion, the record does not establish that, as a matter of law, an employee-employer relationship existed between Dr. Godsell-Stytz and Northern Professional. The contract at issue presents conflicting evidence regarding Dr. Godsell-Stytz’ status. The contract, under the heading "Status of Physician,” stated that the physician was an independent contractor for the furnishing of emergency services. However, the contract also provided that Northern Professional would perform all scheduling, including absences, and prohibited absences during certain holiday periods. Northern Professional also had sole discretion to determine whether a complaint by a hospital against a doctor was serious and meritorious enough to warrant immediate termination, and could suspend or terminate the contract under a variety of circumstances. Further, Northern Professional paid the doctors an hourly wage for services and acquired an assignment of all fees and charges for the doctors’ services.

Also, in the agreement entered into by Northern Professional and Mercy Memorial, Northern Professional was defined as a "Michigan professional Corporation employing physicians qualified to provide emergency medicine services.” An emergency physician was defined as a "subcontractor or employee of the Corporation.” This agreement also provided that Northern Professional is an independent contractor and personnel employed or contracted by Northern Professional were not entitled to benefits provided to hospital employees. Finally, the agreement stated that all personnel provided by Northern Professional are employees or independent contractors of Northern Professional, and Northern Professional was required to pay all compensation and fringe benefits, withhold applicable taxes, pay unemployment compensation fund payments, and maintain worker’s compensation fund insurance.

Therefore, viewed in a light most favorable to Northern Professional, the evidence presented a question of fact whether Dr. Godsell-Stytz was an employee of Northern Professional over whom Northern Professional retained the right of control, or whether she was an independent contractor over whom Northern Professional had no control. Jenkins v Raleigh Trucking Services, Inc, 187 Mich App 424, 429; 468 NW2d 64 (1991). The trial court did not err in denying plaintiff’s motion for a directed verdict or jnov regarding this issue.

hi

Plaintiff next claims that the trial court erred in denying his motions for a directed verdict and jnov regarding whether Dr. Godsell-Stytz, who was found to be an agent of Mercy Memorial, was acting within the scope of her agency when she breached plaintiffs right to confidentiality by contacting the Air Force Academy. We again find that there was a factual issue for the jury to determine and that the trial court properly denied the motions for a directed verdict and jnov.

Plaintiff contends that, as a matter of law, Dr. Godsell-Stytz was acting within the scope of the actual or apparent authority of her agency when she contacted the Air Force Academy concerning plaintiffs admission to the hospital. The authority of an agent to bind a principal may be either actual or apparent. Meretta v Peach, 195 Mich App 695, 698; 491 NW2d 278 (1992). Actual authority may be either express or implied. Implied authority is the authority that an agent believes the agent possesses. Id. Apparent authority arises where the acts and appearances lead a third person reasonably to believe that an agency relationship exists. However, apparent authority must be traceable to the principal and cannot be established only by the acts and conduct of the agent. Id., pp 698-699.

Plaintiff relates the testimony indicating that Dr. Godsell-Stytz called the Air Force Academy from Mercy Memorial, left her name and the hospital’s telephone number for the return call, and advised Lt. Col. Swiney that she was a physician at Mercy Memorial. These facts, however, do not prove as a matter of law that Dr. Godsell-Stytz was acting within the scope of any actual or apparent authority. In fact, plaintiff has pointed to no evidence that Mercy Memorial conferred any actual authority on Dr. Godsell-Stytz to inform the Air Force Academy of plaintiffs admission to the hospital, nor do the facts and circumstances indicate that she had the apparent authority to do this.

Accordingly, viewed in a light most favorable to Mercy Memorial, the evidence, at best, created a jury question regarding whether Dr. Godsell-Stytz was acting within the scope of her authority as an agent of the hospital when she contacted the Air Force Academy. The trial court properly denied plaintiffs motions for a directed verdict and jnov regarding this issue.

IV

Plaintiff next claims that the trial court erred in rescinding that portion of the February 13, 1991, order awarding plaintiff costs and attorney fees against Dr. Godsell-Stytz. Our disposition of this case and of Docket No. 139253, below, renders this issue moot.

v

Plaintiff last contends that Mercy Memorial is precluded from taxing costs pursuant to MCR 2.625 because this lawsuit involved only a single cause of action and plaintiff prevailed on that cause of action against Mercy Memorial. In light of our resolution of the contract issue raised by Mercy Memorial and finding that plaintiff failed to establish the existence of a contract, we find that the award of costs pursuant to MCR 2.625(B)(3) was permissible.

DOCKET NO. 139253

In this appeal, Dr. Godsell-Stytz raises several issues, of which we find the issue regarding proximate cause to be dispositive.

I

As with all purportedly tortious conduct, a breach of a professional confidence must, in order to be actionable, be a proximate cause of the plaintiffs loss. Gebhardt v O’Rourke, 444 Mich 535, 544; 510 NW2d 900 (1994). That requires proof of two separate elements: (1) cause in fact, and (2) legal cause. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). We are reversing in this case because Dr. Godsell-Stytz’ disclosure about plaintiff cannot, as a matter of law, be considered a cause in fact of the rescinding of plaintiffs appointment to the Air Force Academy.

It was undisputed at trial that "applicants to the Academy are required to disclose any new illness or injury since completing the final qualifying medical examination and failure to so comply may cause the applicant to be refused admission.” Therefore, we must assume that plaintiff would have reported his 1988 hospitalization at Mercy Memorial Hospital. The integrity of the legal process demands that the courts assume that persons with such an obligation will honor it. It would corrode the integrity and effectiveness of the legal system to do otherwise. Cf. Pantely v Garris, Garris & Garris, PC, 180 Mich App 768; 447 NW2d 864 (1989). It was also undisputed at trial that plaintiffs appointment was rescinded because, as the result of defendant doctor’s report, his medical records were reviewed and a decision was made, on the basis of that review, to take action. That review was performed according to Department of Defense policy by an established board that regularly conducts such reviews.

Three conclusions inevitably follow: (1) it was not defendant doctor’s disclosures that resulted in the rescinding of plaintiffs appointment; that happened as a result of a review of medical records occasioned by the disclosures, a very significant distinction; (2) the very same review would have occurred had plaintiff reported, as he was required to do, his hospitalization; the same board and policy would have been involved; and (3) because the very same review would have occurred, the only principled conclusion to draw is that plaintiff would have lost his appointment. Accordingly, the proofs at trial provide no basis whatsoever to conclude that "but for” defendant doctor’s disclosures, plaintiffs "injury” would not have occurred. The contrary conclusion is what was indisputably established by the evidence at trial: when plaintiff did whatever he did on June 8, 1988, he lost his appointment to the Air Force Academy by virtue of that conduct. What defendant doctor did made no difference, meaning that her conduct was not a proximate cause of plaintiffs loss. Glesner v Jones, 368 Mich 510, 512; 118 NW2d 378 (1962). Injuries that would have occurred anyway cannot be said to have been proximately caused. Nielsen v Henry H Stevens, Inc, 368 Mich 216, 220; 118 NW2d 397 (1962).

With all due respect to our dissenting colleague, we must say that it is patently incorrect to conclude, as she does, that plaintiffs appointment might not have been revoked had he, not defendant doctor, reported his hospitalization because he might have been able to present it "in a different light.” The trial record does not allow that conclusion. What resulted in the rescinding of plaintiffs appointment was not defendant doctor’s report to the Air Force Academy, but the review of plaintiffs medical records prompted by that report. Had plaintiff reported the hospitalization, as he had to, exactly the same review would have occurred because the same records would have been studied by the same board for the same reason. In other words, no matter how he reported his hospitalization, even if there was a way to report it differently than had defendant doctor, the outcome would have been the same because plaintiff lacked any ability whatsoever to alter the records of that hospitalization. Therefore, it is not speculative to conclude that the outcome would have been the same had plaintiff reported his hospitalization. There is no basis for a conclusion that a different outcome might have occurred had plaintiff, not defendant doctor, reported that hospitalization.

In Azzar v Primebank, FSB, 198 Mich App 512; 499 NW2d 793 (1993), this Court, on the basis of several decisions by the Supreme Court of the United States, held that enforcement of the First Amendment guarantee of the right to petition the government can require conferring absolute immunity from liability on any person who presents information to the government upon which the government acts, even if that information would, if disclosed under other circumstances, give rise to tort liability. Defendant doctor contends, alternatively, that she is entitled to such immunity. We are not deciding that contention, however, because we need not decide it in light of our decision regarding proximate cause. We leave the fleshing out of Azzar to a case where the need to do that will provide the appropriate focus.

m

It necessarily follows that the other defendants in this case cannot possibly be held liable to plaintiff for a reason in addition to those ably discussed by Judge Jansen in her opinion concurring in part. Their liability, if any, is exclusively vicarious. Because defendant doctor cannot, for the reasons discussed above, be held liable to plaintiff, neither other defendant can be held liable, there being nothing from which to derive liability.

DISPOSITION

In Docket No. 139088, the judgment in favor of Northern Professional Emergency Physicians is affirmed and the judgment against Mercy Memorial Hospital is vacated. In Docket No. 139253, the judgment against Dr. Godsell-Stytz is reversed. The issue of mediation sanctions in Docket No. 139088 is moot. We retain no further jurisdiction.

D. C. Kolenda, J., concurred.