If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

LOUISE KACZMARCZYK, as Personal 

Representative of the ESTATE OF DONALD 

KACZMARCZYK,

Plaintiff-Appellee,

UNPUBLISHED

January 11, 2024

v No. 353972

Wayne Circuit Court

DEARBORN SURGERY CENTER, LC No. 18-015126-NH

Defendant-Appellant,

and

JUDITH NAGY, D.O.,

Defendant.

Before: LETICA, P.J., and SERVITTO and M. J. KELLY, JJ.

ON REMAND

PER CURIAM.

In this medical malpractice action, defendant1appeals by leave granted2the trial court order 

denying its motion for summary disposition and the order denying its motion for 

 

1 Defendant, Dr. Judith Nagy, D.O., settled with plaintiff and is not a participant in this or the prior 

appeal. “Defendant” in this appeal thus refers only to Dearborn Surgery Center.

2 Estate of Donald Kaczmarczyk v Dearborn Surgery Ctr, unpublished order of the Court of 

Appeals, entered September 22, 2020 (Docket No. 353972).
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rehearing/reconsideration of the order denying its motion for summary disposition. In a prior 

opinion, this Court set forth the background facts as follows:

This case arises out of the death of Donald Kaczmarczyk on May 24, 2016, 

from purported complications of anesthesia administration in surgery. Before the 

surgery, Donald signed a consent form provided by defendant that stated, in part, 

that “the physicians providing services to me, including but not limited to, the 

surgeon, anesthesiologist, radiologist and pathologist are independent contractors 

with me and are not employees or agents of the Surgery Center or the Hospital.”

Donald also signed a Consent for Anesthesia Administration form that required him 

to consent to the “administration of anesthesia as determined necessary and 

advisable by a member of the Department of Anesthesia.”

Plaintiff, the Estate of Donald Kaczmarczyk, by Louise Kaczmarczyk as personal 

representative, filed a complaint asserting that Dr. Judith Nagy, Donald’s 

anesthesiologist during the surgery at issue, had committed medical malpractice. 

Plaintiff claimed defendant was vicariously liable for Dr. Nagy’s alleged 

malpractice because she was an employee or ostensible agent of defendant.4

Defendant moved the trial court for summary disposition, arguing the lack of any 

genuine issue of material fact that, at the time of the incident at issue, Dr. Nagy was 

not an employee or agent of defendant. In denying defendant’s motion for summary 

disposition, the trial court relied primarily on the consent for anesthesia form, 

reasoning that it controlled over the more general consent for treatment form.

[Estate of Kaczmarczyk v Dearborn Surgery Ctr, unpublished opinion of the Court 

of Appeals, issued September 2, 2021 (Docket No. 353972) (Kaczmarczyk I”)].

On appeal, defendant asserted that the trial court should have granted its motion for 

summary disposition because there was insufficient evidence from which a reasonable jury could 

conclude that Dr. Nagy was an ostensible agent of defendant, making defendant vicariously liable 

for her alleged medical malpractice. This Court agreed, remanding the case to the trial court for 

entry of summary disposition in defendant’s favor. Kaczmarczyk I, unpub op at 2, 6. Plaintiff

sought leave to appeal from our Supreme Court, which initially held the application in abeyance 

pending its decision in Markel v William Beaumont Hospital, 510 Mich 1071; 982 NW2d 151 

(2022)”

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then, after the latter was decided, in lieu of granting leave, vacated this Court’s judgment 

and remanded the case to this Court “for reconsideration in light of Markel.” Kaczmarczyk Estate 

v Dearborn Surgery Ctr, __ Mich ___; 996 NW2d 491 (2023).

In Markel, supra, our Supreme Court clarified the standard for establishing a claim of 

ostensible agency by quoting the standard set forth in Grewe v Mt Clemens Gen Hosp, 404 Mich 

240, 253; 273 NW2d 429 (1978), pointing out that Grewe had not been overruled, and concluding 

that it remains the applicable law. The salient facet of Markel in regards to the issue of ostensible 

agency seems to be the Supreme Court’s admonishment that “the requirement that ‘the putative 

principal must have done something that would create in the patient’s mind the reasonable belief’

 

3Kaczmarczyk v Dearborn Surgery Ctr, 973 NW2d 149 (Mich, 2022)
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of agency” is not limited to affirmative actions, but rather that ostensible agency exists “ ’when 

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.’ ” Markel, 510 Mich at 1072 (emphasis added in 

the original), quoting Grewe, 404 Mich at 252. This Court relied on the Grewe factors in its first 

opinion in this matter, and nothing in Markel call this Court’s prior analysis in the instant case into 

question. Thus, we again reverse and remand for entry of summary disposition in favor of 

defendant.

We review de novo a trial court’s ruling on a motion for summary disposition. Hoffner v 

Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). “A motion for summary disposition brought 

pursuant to MCR 2.116(C)(10) tests the factual support for a claim.” Innovative Adult Foster 

Care, Inc v Ragin, 285 Mich App 466, 474-475; 776 NW2d 398 (2009). This Court reviews a 

motion brought under MCR 2.116(C)(10) “by considering the pleadings, admissions, and other 

evidence submitted by the parties in the light most favorable to the nonmoving party.” Patrick v 

Turkelson, 322 Mich App 595, 605; 913 NW2d 369 (2018) (quotation marks and citation omitted). 

“Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue 

regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. 

at 605 (quotation marks and citation omitted).

To establish a claim of ostensible agency, a plaintiff must show:

[First] The person dealing with the agent must do so with belief in the agent’s 

authority and this belief must be a reasonable one; [second] such belief must be 

generated by some act or neglect of the principal sought to be charged; [third] and 

the third person relying on the agent’s apparent authority must not be guilty of 

negligence. [Markel, 510 Mich 1071, quoting Grewe, 404 Mich at 253 (quotation 

marks and citations omitted; alterations in original).]

Looking at the first Grewe factor, the parties agree that in this matter, Dr. Nagy was an 

independent subcontractor rather than an actual employee or agent of defendant. Hospitals are 

generally not vicariously liable for the negligence of a physician who is an independent contractor 

who simply uses the hospital’s facilities to provide medical treatment. Grewe, 404 Mich at 250. 

A hospital is not liable for the malpractice of independent contractors “merely because the patient 

‘looked to’ the hospital at the time of admission or even was treated briefly by an actual 

nonnegligent agent of the hospital. Chapa v St. Mary’s Hosp, 192 Mich App 29, 33; 480 NW2d 

590 (1991). The critical question for determining whether an ostensible agency could be found 

“is whether the plaintiff, at the time of his admission to the hospital, was looking to the hospital 

for treatment of his physical ailments or merely viewed the hospital as the situs where his physician 

would treat him for his problems.” Grewe, 404 Mich at 251. “[W]hen a patient presents for 

treatment at a hospital emergency room and is treated during their hospital stay by a doctor with 

whom they have no prior relationship, a belief that the doctor is the hospital’s agent is reasonable 

unless the hospital does something to dispel that belief.” Markel, 510 Mich at 1071. On the other 

hand, “[a] patient who has clear notice of a treating physician’s employment status or who has a 

preexisting relationship with a physician outside of the hospital setting cannot reasonably assume 

that the same physician is an employee of the hospital merely because treatment is provided within 

a hospital.” Id.
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The instant case involved scheduled surgery, not an emergency-room visit (as was the case 

in Grewe), but the alleged malpractice was attributed to defendant Dr. Nagy—not Donald’s own 

general surgeon and with whom he had a prior relationship, Dr. Lulek. Thus, the question of 

whether Donald had had a reasonable belief that defendant had authority over Dr. Nagy requires 

beyond simply looking at the fact that Dr. Nagy provided anesthesia at the hospital where Donald’s 

surgery was scheduled and performed. Moreover, plaintiff’s theory of ostensible agency does not 

rest on defendant having caused Donald to believe Dr. Nagy to be defendant’s agent intentionally, 

or by want of ordinary care. Markel, 510 Mich at 1172. Instead, plaintiff directs this Court to the 

consent-for-anesthesia form Donald signed.

The “Consent for Anesthesia Administration” form signed by Donald authorized the 

administration of anesthesia “as determined necessary and advisable by a member of the 

Department of Anesthesia.” However, there is no indication of who employs or is employed by 

the Department of Anesthesia or in what capacities. Nevertheless, assuming that this form may be 

deemed to give rise to an inference that the anesthesia was a hospital-based service, Donald also 

signed a “Consent for Surgical Medical And/Or Other Treatment.” That form specifically 

provided:

I understand that the physicians providing services to me, including but not limited 

to, the surgeon, anesthesiologist, radiologist and pathologist are independent 

contractors with me and are not employees or agents of the Surgery Center or the 

Hospital. When a patient is under the care and supervision of a physician who is 

an independent contractor, it is the responsibility of the Surgery Center and its 

nursing staff to carry out the instructions of such physician. Neither the Surgery 

Center nor the Hospital is responsible for the medical decisions or actions of such 

physicians.

Clearly, then, Donald was aware of and agreed that any physician providing services to him at 

defendant’s location was an independent contractor and not an employee of defendant. Of note, 

the form specifically named anesthesiologists such as Dr. Nagy. There is no conflict in asking a 

patient to acknowledge that anesthesia would be the responsibility of a department of the hospital, 

and also that his anesthesiologist would be an independent subcontractor. To the extent, then, that 

Donald had reason to believe that his anesthesiologist was defendant-appellant’s agent, defendant

well dispelled that misapprehension by obtaining Donald’s express acknowledgment that his 

anesthesiologist was an independent contractor and not defendant-appellant’s agent or employee.

As we indicated in Kaczmarczyk I, plaintiff also argues that “Dr. Nagy’s curriculum vitae 

(CV), which lists her as having previously worked as a ‘Staff Anesthesiologist’ at defendant, and 

Dr. Nagy’s procedure notes on paper carrying defendant’s logo suggest she was an agent of 

defendant.” Id. unpub op at 3. However, because plaintiff has not asserted that Donald ever saw 

Dr. Nagy’s CV or procedure notes and there is no indication that Dr. Nagy, or anyone else, told 

Donald she was an agent or employee of the hospital, this argument fails.

Given the above, the first Grewe factor has not been met. Since all three Grewe factors 

must be met in order to establish ostensible agency, 404 Mich at 252-253, there is no genuine issue 

of material fact regarding whether Dr. Nagy is an agent of defendant, and defendant is, therefore, 

not vicariously liable for Dr. Nagy’s alleged malpractice. The trial court erred when it concluded 
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there was a genuine issue of material fact on this issue and denied summary disposition to 

defendant.

We reverse and remand to the trial court for entry of summary disposition in defendant’s 

favor. We do not retain jurisdiction.

/s/ Anica Letica

/s/ Deborah A. Servitto

/s/ Michael J. Kelly