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

RYAN LEIBINGER,

Plaintiff-Appellant,

UNPUBLISHED

November 21, 2023

v No. 361939

Kent Circuit Court

METROPOLITAN HEALTH CORPORATION, 

doing business as METRO HEALTH, SARA L.

KOSTER, N.P., and CERTIFIED EMERGENCY 

MEDICINE SPECIALISTS, PC,

LC No. 2021-006014-NH

Defendants-Appellees.

Before: MURRAY, P.J., and CAMERON and PATEL, JJ.

PER CURIAM.

Plaintiff, Ryan Leibinger, appeals as of right the orders granting defendants’ motions for 

summary disposition under MCR 2.116(C)(10). According to plaintiff, the trial court wrongly 

determined plaintiff failed to show the existence of an ostensible agency relationship. He further 

argues that his proposed expert witness—a nurse practitioner specializing in wound care—was not 

disqualified under MCL 600.2169(1)(b)(i). We agree. Therefore, we reverse the trial court’s 

orders granting defendants’ respective motions for summary disposition and remand to the trial 

court for further proceedings consistent with this opinion.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

In July 2019, plaintiff went to the Metro Health Urgent Care, a subsidiary of Metropolitan 

Health Corporation (Metro Health), complaining of an injury on his right heel. He was seen by 

defendant, Sara L. Koster. Koster, a nurse practitioner, was an independent contractor employed 

by Certified Emergency Medicine Specialists, PC (CEMS). Plaintiff and Koster had no preexisting

medical relationship. Koster diagnosed plaintiff with a blood blister and treated him accordingly. 

Over time, plaintiff’s condition worsened, and he eventually required orthopedic surgery.
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Plaintiff filed a medical malpractice action, alleging that Koster failed to appropriately treat 

the injury on his heel. Plaintiff claimed that CEMS and Metro Health were vicariously liable for 

Koster’s actions. Plaintiff’s proposed standard-of-care expert filed an affidavit of merit in support 

of his claim. Metro Health moved for summary disposition under MCR 2.116(C)(10), arguing 

that Koster was not its employee and that it could not be held liable under an ostensible agency 

theory. Koster and CEMS (collectively, “the CEMS defendants”) likewise moved for summary 

disposition, contending that plaintiff’s standard-of-care expert was not qualified to provide expert 

testimony under MCL 600.2169. The trial court granted both motions for summary disposition. 

This appeal followed.

II. STANDARDS OF REVIEW

This Court reviews de novo a trial court’s ruling on a motion for summary disposition made 

under MCR 2.116(C)(10). Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A 

(C)(10) motion for summary disposition tests the factual sufficiency of a complaint. Id. at 120. 

In evaluating a motion for summary disposition brought under this subsection, a 

trial court considers affidavits, pleadings, depositions, admissions, and other 

evidence submitted by the parties . . . in the light most favorable to the party 

opposing the motion. Where the proffered evidence fails to establish a genuine 

issue regarding any material fact, the moving party is entitled to judgment as a 

matter of law. [Id. (citations omitted).]

Under the burden-shifting framework of this rule, “the moving party has the initial burden 

of supporting its position by affidavits, depositions, admissions, or other documentary evidence. 

The burden then shifts to the opposing party to establish that a genuine issue of disputed fact 

exists.” Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996) (citations 

omitted). The nonmoving party “must go beyond the pleadings to set forth specific facts showing 

that a genuine issue of material fact exists.” Id.

This case also involves the interpretation of statutes and contractual language, which are 

reviewed de novo. Henry Ford Health Sys v Everest Nat’l Ins Co, 326 Mich App 398, 402; 927 

NW2d 717 (2018).

Whether construing statutes or contracts, courts look to the language used 

and the context for the purpose sought to be achieved. In interpreting a statute, a 

court is guided by legislative intent; in construing a contract, it looks for the intent 

of the parties. Courts are not less constrained in construing statutory terms than 

they are in construing terms agreed to by contracting parties. [In re Certified 

Question, 413 Mich 22, 32 n 5; 319 NW2d 320 (1982).]
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III. OSTENSIBLE AGENCY

Plaintiff argues that the trial court erred when it granted Metro Health summary disposition 

because there was a factual question whether an ostensible agency relationship existed between 

Koster and Metro Health. We agree.1

Generally, under Michigan law, a defendant is only liable for his own acts of negligence. 

Laster v Henry Ford Health Sys, 316 Mich App 726, 734; 892 NW2d 442 (2016). An exception 

to this rule exists under the theory of respondeat superior, in which “an employer may be liable for 

the negligent acts of its employee if the employee was acting within the scope of his employment.” 

Id. “A hospital may be 1) directly liable for malpractice . . . or 2) vicariously liable for the 

negligence of its agents.” Cox v Bd of Hosp Managers for City of Flint, 467 Mich 1, 11; 651 

NW2d 356 (2002).

This case involves a nurse practitioner working as an independent contractor of a hospital 

system. Generally, “a hospital is not vicariously liable for the negligence of a physician who is an 

independent contractor and merely uses the hospital’s facilities to render treatment to his patients.” 

Grewe v Mt Clemens Gen Hosp, 404 Mich 240, 250; 273 NW2d 429 (1978). But, the ostensible 

agency theory holds that a hospital may be liable if the patient “looked to the hospital to provide 

him with medical treatment and there has been a representation by the hospital that medical 

treatment would be afforded by physicians working therein . . . .” Id. at 250-251.

In Michigan, whether there is ostensible agency is a three-factor test:

(1) the person dealing with the agent must do so with belief in the agent’s authority 

and this belief must be a reasonable one, (2) the belief must be generated by some 

act or neglect on the part of the principal sought to be charged, and (3) the person 

relying on the agent’s authority must not be guilty of negligence. [Chapa v Mary’s 

Hosp of Saginaw, 192 Mich App 29, 33-34; 480 NW2d 590 (1991) (citations 

omitted).]

The “critical question” identified by Grewe, 404 Mich at 251, 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. A relevant factor in 

this determination involves resolution of the question of whether the hospital 

provided the plaintiff with [the doctor] or whether the plaintiff and [the doctor] had 

a patient-physician relationship independent of the hospital setting.

Metro Health moved for summary disposition, arguing that it was not liable under an 

ostensible agency theory. Specifically, Metro Health asserted it “expressly informed [Plaintiff] 

that independent contractors provided care at Metro Health.” Plaintiff responded, arguing that he 

 

1

 The parties do not dispute that Koster was not an employee of Metro Health.
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reasonably believed Koster was an employee of Metro Health. In support of this position, plaintiff 

attached deposition testimony which demonstrated Koster wore scrubs and a name badge bearing 

Metro Health’s name and logo. But, according to Metro Health, it adequately dispelled any 

reasonable belief by plaintiff that a Metro Health employee provided his care. Metro Health 

pointed to the consent form signed by plaintiff prior to his treatment. This form stated, in relevant 

part:

5. AGREEMENT TO PAY FOR SERVICES, ASSIGNMENT OF 

RIGHTS AND INSURANCE BENEFITS. With my admission and consent to 

Metro Health for the delivery of medical treatment and services. I acknowledge 

that I may owe Metro Health for a portion or all of the cost of the medical treatment 

and services. I allow my insurance company (or any insurance company 

responsible for paying my medical bills) to pay Metro Health. I know that other 

providers may render/provide services to me while I am a patient and bill me 

separately. I allow assignment of benefits to those providers, which may include 

Radiologists, Anesthesiologists and Emergency Doctors who are specialists acting 

as independent contractors at Metro Health. After settlement through my insurance 

company (if applicable) and any other reimbursement/payment sources, I agree that 

Metro Health and any entity that Metro Health authorizes to seek, obtain, manage 

or collect for the treatment and services Metro Health provides to me. In connection 

with those efforts, my consumer report may be obtained.

A trial court must view the facts in a light most favorable to the nonmoving party. Maiden, 

461 Mich at 120. Viewing the contractual language through this lens establishes that plaintiff was 

on notice that independent contractors may provide medical care. However, the contract goes on 

to state that the care provided by independent contractors is limited to “Radiologists, 

Anesthesiologists and Emergency Doctors.” The explicit mention of one thing implies the 

exclusion of another. See Wayne Co v Wayne Co Retirement Comm, 267 Mich App 230, 248; 704 

NW2d 117 (2005) (explaining the canon of construction, expressio unius est exclusio alterius). 

Here, the contract expressly identifies several types of physicians who may provide treatment as 

independent contractors. The contract does not, however, extend this notice to any nonphysicians. 

Because Koster was a nurse practitioner and not a physician, this contractual provision did not 

adequately notify plaintiff that non-physicians like Koster could be independent contractors. 

Summary disposition was inappropriate because plaintiff’s evidence demonstrated his 

reasonable belief that Koster was a Metro Health employee, and Metro Health failed to present 

evidence showing it dispelled this belief. We therefore reverse the trial court’s order granting 

summary disposition in Metro Health’s favor and remand this issue to the trial court for further 

proceedings.

IV. EXPERT WITNESS

Plaintiff next contends that the trial court erred when it determined his expert witness was 

not qualified under MCL 600.2169(1). We agree.

A medical malpractice claim may be brought against any licensed health care professional. 

MCL 600.2912; MCL 600.5838a(1); Bryant v Oakpointe Villa Nursing Ctr, 471 Mich 411, 422; 
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684 NW2d 864 (2004). Nurse practitioners are licensed health care professionals under the Public 

Health Code, MCL 333.16101 et seq. MCL 333.17210(1)(c). Four elements must be established 

to sustain a medical malpractice claim:

(1) the appropriate standard of care governing the defendant’s conduct at the time 

of the purported negligence, (2) that the defendant breached that standard of care, 

(3) that the plaintiff was injured, and (4) that the plaintiff’s injuries were the 

proximate result of the defendant’s breach of the applicable standard of care. [Kalaj 

v Khan, 295 Mich App 420, 429; 820 NW2d 223 (2012).]

Expert testimony is necessary in a medical malpractice action to establish the applicable 

standard of care and the defendant’s breach of that standard. Elher v Misra, 499 Mich 11, 21; 878 

NW2d 790 (2016). The proponent of the expert testimony in a medical malpractice action must 

establish that the expert is qualified under MCL 600.2169(1). MCL 600.2169(1) states:

In an action alleging medical malpractice, a person shall not give expert 

testimony on the appropriate standard of practice or care unless the person is 

licensed as a health professional in this state or another state and meets the 

following criteria:

(a) If the party against whom or on whose behalf the testimony is offered is 

a specialist, specializes at the time of the occurrence that is the basis for the action 

in the same specialty as the party against whom or on whose behalf the testimony 

is offered. However, if the party against whom or on whose behalf the testimony 

is offered is a specialist who is board certified, the expert witness must be a 

specialist who is board certified in that specialty.

(b) Subject to subdivision (c), during the year immediately preceding the 

date of the occurrence that is the basis for the claim or action, devoted a majority 

of his or her professional time to either or both of the following:

(i) The active clinical practice of the same health profession in which the 

party against whom or on whose behalf the testimony is offered is licensed and, if 

that party is a specialist, the active clinical practice of that specialty.

(ii) The instruction of students in an accredited health professional school 

or accredited residency or clinical research program in the same health profession 

in which the party against whom or on whose behalf the testimony is offered is 

licensed and, if that party is a specialist, an accredited health professional school or 

accredited residency or clinical research program in the same specialty.

(c) If the party against whom or on whose behalf the testimony is offered is 

a general practitioner, the expert witness, during the year immediately preceding 

the date of the occurrence that is the basis for the claim or action, devoted a majority 

of his or her professional time to either or both of the following:

(i) Active clinical practice as a general practitioner.
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(ii) Instruction of students in an accredited health professional school or 

accredited residency or clinical research program in the same health profession in 

which the party against whom or on whose behalf the testimony is offered is 

licensed.

The CEMS defendants moved for summary disposition alleging there was no genuine 

question of fact that plaintiff’s proposed expert was not qualified to testify as an expert witness in 

this case. In granting their motion for summary disposition, the trial court reasoned:

Koster was practicing as a Family Nurse Practitioner, and [the proposed expert,] a 

Certified Wound Care Specialist. Wound care is a specialty. Specialists do not 

need to be a Nurse Practitioner to become board certified, although they do have to 

have certain credentials and wound care experience. [The proposed expert] spent 

her professional time as a Certified Wound Care Specialist, and the Court finds she 

does not qualify under MCL [600.2169(1)(b)].[2] [Footnote added.]

A threshold question in this case is the meaning of the phrase “if that party is a specialist, 

the active clinical practice of that specialty.” MCL 600.2169(1)(b)(i). Specifically, whether the 

proposed expert, who was a nurse practitioner specializing in wound care, qualified as a 

“specialist” under MCL 600.2169(1)(b)(i). In similar circumstances, we have concluded that the 

term “specialist” includes physicians, but not other health care professionals.

For example, in McElhaney ex rel McElhaney v Harper-Hutzel Hosp, 269 Mich App 488, 

493-494; 711 NW2d 795 (2006), this Court considered whether a nurse midwife could be 

considered a “specialist” under MCL 600.2169(1)(a). We relied on the dictionary to define the 

term “specialist” to mean “a medical practitioner who deals only with a particular class of diseases, 

conditions, patients, etc.” Id. at 494 n 4; quoting Random House College Dictionary (1995). We 

noted that a “physician” is statutorily defined as “an individual licensed under this article to engage 

in the practice of medicine.” McElhaney, 269 Mich App at 494 n 4; quoting MCL 333.17001(1)(c) 

as amended by 2018 PA 524 and 2018 PA 624.3 And, the practice of medicine is defined as “the 

diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, 

or other physical or mental condition, by attendance, advice, device, diagnostic test, or other 

means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these 

acts.” McElhaney, 269 Mich App at 494 n 4; quoting MCL 333.17001(1)(d) as amended by 2018 

PA 524 and 2018 PA 624.4

We noted that “[n]urse midwives are registered professional nurses with specialty 

certification in the practice of nurse midwifery issued by the Board of Nursing.” McElhaney, 269 

Mich App at 494 n 4; citing MCL 333.17210 and MCL 333.2701. But under the plain and ordinary 

terms of the statute, only physicians practice medicine, while nurse midwives practice nursing. 

 

2 The trial court incorrectly cited the applicable statute as “MCL 600.2619(1)(b).”

3 The term “physician” is now cited at MCL 333.17001(1)(f).

4 The term “practice of medicine” is now cited at MCL 333.17001(1)(j).
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McElhaney, 269 Mich App at 494 n 4. Accordingly, the term “specialist” under MCL 

600.2169(1)(a) does not include nurse midwives.

It is a common tenant of statutory interpretation that words and phrases are to be read 

harmoniously across statutory schemes. Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 

(2009) (A “statute must be interpreted in a manner that ensures that it works in harmony with the 

entire statutory scheme.”). Thus, the definition of the term “specialist” should be applied under 

subsection (1)(b) in the same manner as it is under subsection (1)(a). As noted above, a specialist 

is a “medical practitioner who deals only with a particular class of diseases, conditions, patients, 

etc.” McElhaney, 269 Mich App at 494 n 4. A physician is presently defined as “an individual 

who is licensed or authorized under this article to engage in the practice of medicine.” MCL 

333.17001(1)(f).5 By contrast, certified nurse practitioners are registered professional nurses with

“advanced training beyond that required for initial licensure . . . .” MCL 333.17210(1). Put 

simply, physicians practice medicine and nurse practitioners practice nursing. Because the term 

“specialist” only applies to individuals who practice medicine, the term cannot be applied to nurse 

practitioners. We therefore hold that, under MCL 600.2169(1)(b)(i), the phrase “if that party is a 

specialist, the active clinical practice of that specialty” does not apply to nurse practitioners 

because nurse practitioners are not “specialists” as defined by the statute.

The trial court granted summary disposition to the CEMS defendants because plaintiff’s 

proposed expert specialized in wound care and not general-practice medicine. But, given our 

analysis above, the specialist requirement of MCL 600.2169(1)(b)(i) does not apply to nurse 

practitioners. Thus, to be qualified as a nurse practitioner expert witness under MCL 

600.2169(1)(b)(i), the plaintiff need only show that the proposed witness engaged in “[t]he active 

clinical practice of the same health profession in which the party against whom or on whose behalf 

the testimony is offered is licensed.” (Emphasis added.) Here, both Koster and the proposed 

expert were nurse practitioners engaged in the active clinical practice of nursing. Consequently, 

the trial court erred when it concluded the proposed expert was not qualified under MCL 

600.2169(1)(b)(i). 

Reversed and remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction.

/s/ Christopher M. Murray 

/s/ Thomas C. Cameron 

/s/ Sima G. Patel 

 

5 This is slightly different from the definition set forth in McElhaney, which omitted the phrase “or 

authorized.” McElhaney, 269 Mich App at 494 n 4.