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### STATE OF MICHIGAN

COURT OF APPEALS

DONALD GRIMMER, as Pers onal Representative
of the Estate of MEL ODY GRIMMER, Deceased,

Plaintiff-Appellant, FOR PUBLICATION March 26, 2015
9:05 a.m.

v No. 318046 Bay Circuit Court DANIEL T. LEE, M.D., STEPHEN J. MATTICHAK, M.D., BAY REGIONAL MEDICAL CENTER, BAY REGIONAL HEART AND VASCULAR, and MICHIGAN
CARDIOVASCULAR INSTI TUTE, Jointly and Severally, LC No. 13-003094-NH

Defendant-Appellees,

and

ANTONIO VASQUEZ, M.D., ANTONIO VASQUEZ, M.D., P.C., and BAY CITY VASCULAR,

Defendants.

Before: S HAPIRO , P.J., and G LEICHER and R ONAYNE K RAUSE , JJ.

P ER C URIAM

.
Plaintiff Donald Grimmer brought a medical malpractice action against a handful of defendants including two cardiol ogists (defendants Daniel T. Le e, M.D. and Stephen J. Mattichak, M.D.) and a vascular surgeon (defendant Antonio Vasq uez, M.D.). The cardiology
defendants and their principals sought summary disposition base d on Grimmer’s failure to file an affidavit of merit signed by a cardiologist. Before hearing th at motion, the circuit court dismissed Dr. Vasquez and his pr ofessional corp oration without prejudice for want of service.

Grimmer’s complaint alleged that two defendants, Bay Regional Medical Center (BRMC) and Bay Regional Heart a nd Vascular (BRHV), bore vicario us liability for Dr. Vasquez’s negligence. Neither defendant filed a motion seeking summary disposition of the-2- vicarious liability claims. Nevertheless, the circuit court di smissed the vicarious liability allegations with prejudice. This was error, and we reverse and remand for further proceedings.

I. BACKGROUND FACTS AND PROCEEDINGS

Melody Grimmer died one day aft er undergoing a cardiac cathete rization performed by Dr. Mattichak. An autopsy conclu ded that a retroperitoneal hem atoma containing 3,000 grams of unclotted blood triggered a fatal cardiopulmonary arrest. A ccording to the complaint, defendant Vasquez had examined M elody after the ca theterization , recognized the presence of the hematoma, but declined to operate. The complaint and an ac companying affidavit of merit charge that Dr. Vasquez’s failure to intercede constitutes prof essional negligence.

The complaint also sets forth malpractice claims against Dr. M attichak and another cardiologist, Dr. Daniel Lee. How ever, Grimmer never filed an affidavit of merit attesting to the cardiologists’ negligence. They filed a summary disposition mo tion on that ground, invoking MCL 600.2912d(1) and MCL 600.2169(1 )(a). Counsel for the BRMC and the professional corporations employing Drs. Lee and Mattichak joined in the mot ion. 1 Notably, none of the summary disposition motions or accompanying briefs mentioned Dr . Vasquez, and none sought summary disposition regarding the complaint’s averments of Dr. Vasquez’s direct liability or the vicarious liability flo wing from his conduct.

After the cardiologists’ summary disposition motion was filed but before it was heard, the circuit court entered an order dismissing Dr. Vasquez and his p rofessional corporation without prejudice, noting that these tw o defendants had not been served with process.

During the summary disposition hearing, the circuit court read aloud an e-mail written by Grimmer’s counsel and provided by the attorney for the cardiolo gists, BRMC and BRHV. The email stated: “I am writing to advise you that I will not be ap pearing at [the] motion today. We will not oppose your motion for summary disposition as to the c ardiologists but we cannot stipulate.” Defendants’ counsel then reminded the court that D r. Vasquez and his professional corporation had been dismissed f or failure to serve, continuing :

In view of that, your Honor, I have prepared an order that dis misses Dr. Lee, Dr. Mattichak, and [BRMC], with prejudice, because the onl y claims against [BRMC] is [sic] vicarious for t he acts of Dr. Lee and Dr. Matti chak, as well as Dr. Vasquez. If Dr. Vasquez is not a party to this lawsuit, we can ’t be vicariously liable for him. And, therefore, the order I have prepared woul d be a permanent dismissal for Dr. Lee, Dr. Mattichak, and [BRMC].

The court entered an order providing in relevant part:

1 BRMC, BRHV, and defendant Michi gan Cardiovascular Institute al l sought summary disposition of claims alleging vi carious liability for the negl igence of Drs. Lee and Mattichak.-3- It is hereby ordered that Defendants [BRMC]; [BRHV]; Dr. Danie l Lee and Dr. Stephen Mattichak’s Moti on for Summary Disposition is G RANTED and all claims against Dr. Daniel Lee and Dr. Stephen Mattichak and any claims of vicarious liability against [BRHV ] and [BRMC] related to Dr. Da niel Lee, Dr. Stephen Mattichak and Dr. Antoni o Vasquez, M.D., are dismissed with prejudice.

Grimmer now appeals as of right from the portion of this order granting summary disposition of Grimmer’s vicarious liability claims against BRMC and BRHV prem ised on Dr. Vasquez’s negligence.

II. ANALYSIS

The circuit court should not have summarily dismissed the vica rious liability claims stemming from Dr. Vasquez’s negligence for two reasons. First, none of the defendants filed a motion seeking summary dispositio n of the Vasquez-related alleg ations. Second, had such a motion been filed, it would have been unsuccessful.

Defendants sought summary disposition under MCR 2.116(C)(7) an d (C)(8). A motion brought under either of these subr ules “must specify the ground s on which it is based[.]” MCR 2.116(C). Defendants’ summary disposition motions and briefs m ade no mention whatsoever of the vicarious liability claims pleaded in Grimmer’s complaint f lowing from Dr. Vasquez’s actions and inactions. Nowhere in the summary disposition plea dings did defendants “specify” that summary disposition was sought regarding the claims relate d to Dr. Vasquez. Although the court rules afford a circuit court the authority to grant summa ry disposition based on the pleadings, “the trial court may not do so in contravention of a party’s due process rights.” AlMaliki v LaGrant , 286 Mich App 483, 489; 781 NW2d 853 (2009).

Grimmer’s counsel had no notice that the circuit court intende d to consider the dismissal of the indirect liability claims raised in relation to Dr. Vasq uez, and no reason to anticipate that defense counsel and the court would sua sponte enlarge the pend ing summary disposition motion to incorporate a legal issue never before mentioned. In summar ily dismissing the defendants who allegedly bore vicarious liability for Dr. Vasquez’s neglig ent acts, the circuit court bypassed the basic due process requireme nts of notice and an opportunity to be heard. For this reason, we
must reverse the circuit court.

Further, we respectfully rejec t defense counsel’s contention, made during oral argument in this Court, that Grimmer shoul d be penalized f or his counsel ’s failure to personally attend the motion hearing. Counsel cannot be faulted for deferring a pers onal appearance after having clearly communicated that she had no objection to the specific relief sought in the motions actually filed. Alternatively stated, Grimmer’s attorney was e ntitled to rely on the good faith of her opposing counsel.

Summary disposition of the vicarious liability claims involvin g Dr. Vasquez was improper for a second reason as w ell. Defense counsel’s declar ation that “[i]f Dr. Vasquez is not a party to this lawsuit, we can ’t be vicariously liable for him ” is fundamentally incorrect.-4- In a medical malpractice case, “[a] hospital may be 1) directl y liable for malpractice, through claims of negligence in supervision of staff physicians as well as selection and retention of medical staff, or 2) vicarious ly liable for the negligence o f its agents.” Cox v Flint Bd of Hosp Managers , 467 Mich 1, 11; 651 NW2d 356 (2002). This Court explained in Nippa v Botsford Gen Hosp , 257 Mich App 387, 392; 668 NW2d 628 (2003), that “the law cre ates a practical identity between a principal and an agent, and, by a legal fict ion, the hospital is held to have done what its agents have done.” In Cox and Nippa , the defendant hospitals were charged with the vicarious liability of nurses or physicians who were not na med as individual defendants. In
Al-Shimmari v Detroit Med Ctr , 477 Mich 280, 294-295; 731 NW 2d 29 (2007), the Supreme Court elucidated, “Nothing in the nature of vicarious liability . . . requires that a judgment be rendered against the negligent agent. Rather, to succeed on a vicarious liability claim, a plaintiff need only prove that an agent has acted negligently.” As these cases demonstrate, a plaintiff need not necessarily name the agent as a defendant when suing t he principal. Alternatively stated, a plaintiff may elect to sue the principal alone, or to sue the principal and the agent together.

Grimmer sued the two together. His complaint alleges that Dr. Vasquez acted as an agent of BRMC and BRHV. Apparently, th e circuit court believed that because it had dismissed Dr. Vasquez from the litigation wi thout prejudice, BRMC and BRHV co uld not be held legally responsible for Dr. Vasquez’s negligence. In their appellate b rief, defendants argue that due to the dismissal, Grimmer’s direct liability claim against Dr. Vas quez is no longer “viable,” thereby extinguishing defendants’ vicarious liability.

When a litigant chooses to proceed against an agent “and has b een defeated, he is thereby barred from litigating the same cause of action against the pri ncipal. It follows that a
determination of the issue in a suit brought against the princi pal bars an action against the agents.” De Polo v Greig , 338 Mich 703, 709-710; 62 NW2d 441 (1954) (citations omitted) . A
dismissal with prejudice amounts to an adjudication on the merits and bars a further action based on the same facts. But a dismissal without prejudice is not a dismissal on the merits. Yeo v State
Farm Fire & Cas Ins Co , 242 Mich App 483, 484; 618 NW2d 916 (2000). Our Supreme Cour t has described that the term “without prejudice” signifies “a ri ght or privilege to take further legal proceedings on the same subject, and show that the dismissal is not intended to be res adjudicata
of the merits.” McIntyre v McIntyre, 205 Mich 496, 499; 171 NW 393 (1919) (quotation marks and citation omitted); “A dismissal of a suit without prejudice is no decision of the controversy on its merits, and leaves the whol e subject of litigation as mu ch open to another suit as if no suit had ever been brought.” Id. (quotation marks and citation omitted).

The Supreme Court’s opinion in Al-Shimmari , erects no barrier to reinstating this case. In that case, the cir cuit court granted th e physician-agent’s m otion for summary disposition with prejudice. 2 The Supreme Court highlighted that “the trial court stated in its order that the

2 Like this case, the dismissal at issue in Al-Shimmari arose from a failure to serve process on a defendant physician. But unlike this case, the parties in Al-Shimmari contested in an evidentiary hearing whether service of pro cess had been timely made. Al-Shimmari , 477 Mich at 286.-5- dismissal was ‘with prejudice.’” Al-Shimmari , 477 Mich at 295. “Therefore,” the Court continued, “under MCR 2.504(B)(3), the dismissal of the claims against [the physician] ‘operates as an adjudication on the merits.’” Id.

Because the remaining defendants may only be vicariously liabl e on the basis of the imputed negligence of [plaintiff’s physician], pla intiff must demonstrate that [his physician] was negligent in order for the remaining defendants to be found vicariously liable. However, the dismis sal of the claims against [the physician] operates as an adjudication on the meri ts of the claims against [him]. Plaintiff conse quently is unable to show that t he remaining defendants are vicariously liable for the acts of [the physicia n], because the dismissal of the claims against [the physician] prevents plaint iff from arguing the merits of the negligence claim against [him]. [ Id. at 295-296.]

The without-prejudice dismissal of Dr. Vasquez entered by the circuit court was not a adjudication on the merits. Thus, it did not bar an action aga inst Dr. Vasquez’s principals. The circuit court erred by affordi ng its “without prejudice” dismis sal order preclusive effect.

Accordingly, we reverse and re mand for proceedings consistent with this opinion. We do not retain jurisdiction. Having pr evailed in full, Grimmer may tax costs pursuant to MCR 7.219.

/s/ Douglas B. Shapiro
/s/ Elizabeth L. Gleicher /s/ Amy Ronayne Krause

Following that hearing, the defe ndant physician moved for, and was granted, dismissal with prejudice. Id. at 295.