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### STATE OF MICHIGAN

COURT OF APPEALS

MEDREANIA JOHNSON,

Plaintiff-Appellant/Cross-Appellee, UNPUBLISHED July 21, 2016

v No. 326615 Oakland Circuit Court RAMACHANDRA KOLACHALAM, M.D., MUBASHIR SABIR, M.D., ST. JOHN HEALTH, and PROVIDENCE HOSPITAL AND MEDICAL CENTER, d/b/a PROVIDENCE PARK HOSPITAL, LC No. 2012-129640-NH

Defendants-Appellees/CrossAppellants,

and

R. B. KOLACHALAM, LLC,

Defendant-Appellee.

Before: G ADOLA , P.J., and S ERVITTO and S HAPIRO , JJ.

P ER C URIAM

. Plaintiff appeals as of right the trial court’s entry of a def ault judgment against her and dismissal of her medical malpractice action as a sanction. Def endants filed a cross-appeal from the trial court’s denial of their motion in limine and motion f or partial summary disposition. We reverse the trial court’s entry of a default judgment and dismi ssal of plaintiff’s action, and affirm in part and reverse in part the trial court’s orders denying de fendants’ motion in limine and motion for partial summary disposition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff brought this medical malpractice action for injuries she sustained during a gallbladder removal surgery performed by defendant Mubashir Sab ir, M.D., at Providence Park Hospital (Providence). Sabir, a general surgeon, performed a l aparoscopic cholecystectomy (lap chole) on plaintiff, during which he “inadvertently” cut plaint iff’s common hepatic duct (bile duct). Upon noticing the injury, Sabir contacted defendant Ram achandra Kolachalam, M.D., to-2- provide assistance in performing a second surgical procedure, a Roux-en-Y hepaticojejunostomy (Roux-en-Y), to repair the bile duct. The Roux-en-Y was unsucc essful, and plaintiff later required additional surgery to repair the injury.

On October 1, 2012, plaintiff filed this medical malpractice l awsuit against defendants, asserting that Sabir was negligent in cutting the bile duct dur ing the lap chole and that both Sabir and Kolachalam were negligent in treating the injury. Plaintif f also alleged claims of negligence against defendants R. B. Kolchalam, LLC, Providence, and St. Jo hn Health System (St. John) under theories of direct and vicar ious liability. Defendants K olachalam and R. B. Kolachalam, LLC, were ultimately dismissed under the Good Samaritan statute , MCL 691.1502(1), and the case proceeded with defendants Sabir, Providence, and St. John.

A. CIRCUMSTANCES LEADING UP TO DISMISSAL

On June 26, 2014, the trial court issued a final trial order, setting the trial date for August 18, 2014, and providing submission dates for jury instructions, exhibit and witness lists, and objections to proposed evidence. The order stated that it was a “continuing order” and that “[d]ates will adjourn accordingly should the trial date change. ” On July 3, 2014, the trial court issued a notice that trial would be adjourned until October 13, 2014. The notice contained only a change in the trial date, and did not address the submission da tes for other filings. On July 9, 2014, the trial court issued a stipulated order compelling plai ntiff to produce certain documents related to plaintiff’s expert witness, Jason Green, M.D.

In September 2014, defendants filed motions to dismiss the cas e, arguing that plaintiff failed to comply with the July 9, 2014 discovery order and the filing dates set in the final trial order of June 26, 2014. On September 25, 2014, the court enter ed an order stati ng that “a default entry is ordered against [p]laintiff” for her “failure to compl y with the Final Trial Order of June 26, 2014.” On September 29, 2014, plaintiff filed an emergencymotion to reinstate the case, arguing that the failure to timely provide proposed jury instru ctions and an exhibit list was not deliberate and that counsel inadv ertently failed to recalculate the revised due dates when the court adjourned trial from August until October of 2014. Along with the motion, plaintiff also filed proposed jury instructions , an exhibit lis t, and a witnes s list.

At an October 8, 2014 hearing, the trial court granted plainti ff’s motion to reinstate the case, concluding that dismissal was too harsh a sanction. The court instructed plaintiff’s counsel to pay a fine of $1,000 “forthwith as a condition precedent to continue with this case,” and instructed the parties to meet in chambers to select a new tria l date. The record does not show that the court’s oral ruling was ever entered in a written orde r.
On November 17, 2014, the trial court entered a new final tria l order, settin g trial to begin on December 15, 2014, and ordering plaintiff to submit a witnes s list to defense counsel by November 19, 2014. Plaintiff’s counsel e-filed the witness lis t on November 19, 2014, but because the list was filed after 4:30 p.m., the circuit court r ecorded the document as being filed on November 20, 2014. On December 5, 2014, defendants filed a second motion for entry of default judgment, arguing that plaintiff failed to comply with the November 17, 2014 final trial order, and her counsel failed to pay the $1,000 sanction and re instatement fee, so the default order remained in place. They argued that plaintiff had not co mplied with the July 9, 2014-3- discovery order. Plaintiff responded that counsel had paid the $1,000 fee, computer difficulties caused the delay in filing the witness list, and defendants suf fered no prejudice because they already had a copy of the witness list, which plaintiff filed w ith her motion to reinstate the case.

At a hearing on the motion, the trial court concluded the foll owing:

A proper default was . . . entered in October of 2014. That wa s never properly set aside even though Plaintiff’s motion was granted, and an order signing the order was never accepted because of Plaintiff’s failure to pay a mere $30 reinstatement fee. Plaintiff also failed to pay a $1000 sanction as ordered, and failed to comply with the most recent final trial order. . . .

For these reasons, and those stated by Defendant, the case rema ins in default, and the case is dismisse d with prejudice.

B. MOTION IN LIMINE

Meanwhile, on May 22, 2014, defendants filed a motion to limin e to strike plaintiff’s expert medical witnesses, Leonard Milewski, M.D. and Dr. Green, arguing that (1) Milewski improperly imposed a negligence p er se standard by testifying t hat any bile duct injury during a lap chole amounted to malpractic e; (2) Green was not qualified to testify regarding the standard of care under MCL 600.2169(1) becau se he did not spend the majo rity of his time practicing general surgery; (3) the testimony of both doctors was inconsis tent and contrary to medical literature; and (4) neither docto r was qualified to testify reg arding the propriety of Sabir performing the Roux-en-Y procedure because they had little or n o experience performing the procedure. Following a hearing, the trial court determined tha t defendants misconstrued Milewski’s testimony because he did not testify that every bile duct injury during a lap chole amounted to malpractice, but only that this had been his experi ence. The court concluded that Green spent a majority of his time practicing general surgery b ecause there was significant overlap between general and colorectal surgery. The court furt her determined that the medical literature relied on by defendants supported Milewski’s and Gre en’s opinions. Accordingly, the court denied defendants’ motion in limine. 1

C. PARTIAL MOTION FOR SUMMARY DISPOSITION

On May 1, 2014, defendants filed a motion for partial summary disposition under MCR 2.116(C)(10), arguing that Provide nce and St. John could not be held vicariously liable for Sabir’s actions. 2 Specifically, defendants argued that no actual agency relatio nship existed

1 On August 25, 2014, defendants filed an application for leave to appeal in this Court, raising the same arguments presented bel ow. This Court denied the appl ication “for failu re to persuade the Court of the need for immediate appellate review.” Johnson v Kolachalam , unpublished order of the Court of Appeals , entered October 3, 2014 (Docket No. 323300).

2 Defendants additionally argued that they could not be held vic ariously liable for the actions of Kolachalam because he was previously dismissed from the lawsuit . The trial court ultimately-4- because Sabir was an independent physician with staff privilege s at the hospital, and no ostensible agency relationship existed because the hospital did not hold Sabir out as its agent. Additionally, they argued that no ostensible agency existed bec ause Gayla Zoghlin, M.D., referred plaintiff for treatment to Kolachalam, and Sabir was a ssociated with Kolachalam’s practice. They further argued that plaintiff’s direct liability claims were improper because none of plaintiff’s expert witnesse s offered any opinion regarding a cts or omissions by the hospital.

The trial court concluded that there was sufficient evidence t o create a genuine issue of material fact regarding whether Sabir was an employee of Provid ence and St. John for purposes of vicarious liability. Further, the court determined that the facts supported that an ostensible agency relationship existed because “plaintiff presented to the hospital for emergency treatment and was seen by Sabir with whom plaintiff had no pre-existing r elationship.” Accordingly, the trial court denied defendants’ motion for partial summary dispo sition with regard to Sabir. 3

II. DEFAULT JUDGMENT AND DI SMISSAL WITH PREJUDICE

A. STANDARD OF REVIEW

Plaintiff argues that the trial court abused its discretion by entering a default judgment and dismissing her case with prejudice as a sanction. We agree . We review for an abuse of discretion a trial court’s dismissal of a cause of action for f ailure to comply with the court’s orders. Maldonado v Ford Motor Co , 476 Mich 372, 388; 719 NW2d 809 (2006). “An abuse of discretion occurs when the decision results in an outcome falli ng outside the principled range of outcomes.” Woodard v Custer , 476 Mich 545, 557; 719 NW2d 842 (2006).

B. DISCUSSION

As a preliminary matter, the trial court erred by entering a d efault judgment against plaintiff under MCR 2.603, because MCR 2.603(A)(1) makes clear that a default may only be entered against a party “against whom a judgment for affirmativ e relief is sought.” The party seeking affirmative relief is the plaintiff. Likewise, a defau lt judgment may generally only be set aside under MCR 2.603(D)(1) if the party who is subject to the default demonstrates a meritorious defense. Therefore, under MCR 2.603, only a defend ant may be subject to a default judgment. The trial court erred by imposing a default judgment against plaintiff, and erred by granting defendants’ second motion for entry of a default judgm ent in part because it concluded that plaintiff’s case remained in default because plaintiff did not comply with procedures to set

granted defendants’ motion relating to the claim of vicarious l iability for Kolachalam. This portion of the court’s order is not challenged on appeal.

3 Defendants filed a motion for re consideration, arguing that (1 ) Sabir was an employee of Medical Resource Group (MRG), which was a separate corporate en tity from the hospital, (2) plaintiff’s referral by another physician prevented a finding o f ostensible agency, and (3) the trial court failed to provide reasons for rejecting defendants’ motio n regarding plaintiff’s direct liability claims. Without oral ar gument, the trial court denie d the motion, concluding that defendants failed to demonstrate a palpable error by which the court and parties had been misled.-5- aside the default judgment. A c ircuit court nece ssarily abuses its discretion when it commits an error of law. People v Duncan , 494 Mich 713, 723; 835 NW2d 399 (2013).

The corresponding sanction that c ould be imposed on plaintiff is dismissal, governed by MCR 2.504(B), which allows a court to dismiss a plaintiff’s cas e for failure “to comply with these rules or a court order.” Dismissal is a drastic sanction that should be undertaken with caution, and trial courts must carefully consider all other opt ions on the record before imposing such a sanction. Vicencio v Ramirez , 211 Mich App 501, 506; 536 NW2d 280 (1995). Before imposing the harsh sanction of dism issal, courts should conside r certain factors, including:

(1) whether the violation was willful or accidental; (2) the pa rty’s history of refusing to comply with previous court orders; (3) the prejudic e to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of compliance with other parts of the court’s orders; (6) attempts to cure the defect; and (7) whether a lesser sancti on would better serve the intere sts of justice. [ Id. at 507, citing Dean v Tucker , 182 Mich App 27, 32-33; 451 NW2d 571 (1990).]

The trial court first entered a default judgment and dismissed plaintiff’s case after plaintiff failed to comply with a July 9, 2014 discovery order and failed to timely submit filings pursuant to a June 26, 2014 final trial order. The June 26, 20 14 order stated that filing dates would “adjourn accordingly should the trial date change,” and o n July 3, 2014, th e trial court adjourned trial from August unt il October of 2014. Although th e notice of adjournment stated the new dates for trial, it did not clarify the revised filing deadlines. Counsel explained that the late filings were the result of his inadvertent failure to reca lculate the deadlines after the court adjourned trial.

At a hearing on plaintiff’s motion to reinstate the case, the court attributed the violations to counsel’s mismanagement and concluded that dismissal was too harsh a sanction under the circumstances. The court directe d plaintiff’s counsel to pay a fine of $1,000, but did not specify when the fine was due, other than to say that it should be paid “forthwith.” Plaintiff’s counsel paid the fine on December 5, 2014. On November 17, 2014, the c ourt issued a new final trial order, which required plaintiff to submit a witness list to def endants by November 19, 2014. Although plaintiff e-filed the document on Nove mber 19, 2014, i t was not recorded until the next day. Plaintiff noted that defenda nts already had a copy of the witness list because plaintiff filed it along with her motion to r einstate the case.

Under these facts, dismissal was inappropriate. It appears th at plaintiff’s failure to timely file the witness list was inadvert ent, particularly when the do cument was e-filed on the correct day. Defendants cannot show prejudice because they already had a copy of the witness list. Further, counsel’s delay in pa ying the $1,000 fine can hardly b e labeled an egregious violation when the trial court did not specify when the fine was due and did not reduce its directive to a written order. See In re Contempt of Henry , 282 Mich App 656, 678; 765 NW2d 44 (2009) (“[A] court speaks through its wr itten orders and judgments, no t through its oral pronouncements.”). Although plainti ff had some history of fail ing to comply w ith previous court orders, there is no evidence that plaintiff failed to comply wi th other parts of the court’s orders. Additionally, the reco rd does not demonstrate that the trial co urt “carefully evaluate[d] all available options on the record” before imposing the harsh sanc tion of dismissal. Vicencio , 211-6- Mich App at 506. Under these circumstances, we believe a lesse r sanction than dismissal would have better served the interests of justice. Therefore, the tr ial court abused its discretion by dismissing plaintiff’s case.

III. MOTION IN LIMINE

A. STANDARD OF REVIEW

This Court reviews for an abuse of discretion a trial court’s determination on a motion in limine. Elezovic v Ford Motor Co , 472 Mich 408, 431; 697 NW2d 851 (2005). Likewise, a trial court’s decision to admit or exc lude expert witness testimony i s reviewed for an abuse of discretion. Craig v Oakwood Hosp , 471 Mich 67, 76; 684 NW2d 296 (2004). “[A]ny error in the admission or exclusion of evi dence will not warrant appellate relief unless refusal to take this action appears . . . inconsistent with substantial justice, or affects a substantial right of the opposing party.” Id. (citation and quotation marks omitted). We review questions o f statutory interpretation de novo. Woodard , 476 Mich at 557.

B. DR. GREEN’S TESTIMONY

Defendants argue that Green’s testimony was inadmissible under MCL 600.2169(1)(b) because Green did not spend a majority of his time in the pract ice of general surgery. We agree. MCL 600.2169(1)(b) states that, in an action alleging medical m alpractice, any person providing expert testimony on the appropriate standard of care must have, “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” the “active clinical practice” or the “instruction of students” in “the same specialty” as the defendant physician. This Court has interpreted this statute to mean that a proposed expert witness must “spend grea ter than 50 percent of his or her professional time practicing the relevant specialty the year be fore the alleged malpractice.” Kiefer v Markley , 283 Mich App 555, 559; 769 NW2d 271 (2009).

At his deposition, Green explaine d that he is board-certified in both general surgery and colorectal surgery. The AmericanBoard of Medical Specialties lists general surgery and colon and rectal surgery as two distin ct specialties. Green explaine d that he split his time “50/50” between the two specialties, and that the two specialties share professional skills. Nevertheless, in Woodard , 476 Mich at 560, our Supreme Court held that “a specialist ca n only devote a majority of his professional time to one specialty.” As strictly interpreted, Green is disqualified from offering expert testimony under MCL 600.2169(1) because he did not spend more than 50% of his professional time pract icing the one most relevant s pecialty of general surgery. 4 Therefore, the trial court abus ed its discretion by allowing Gr een’s standard of care testimony.

4 See Woodard , 476 Mich at 577-579 (concluding that a proposed expert could not testify under MCL 600.2169(1) despite the fact that he spent a majority of hi s time practicing a subspecialty of the defendant’s most rele vant specialty); see also Johnson v Bhimani , unpublished opinion per curiam of the Court of Appeal s, issued February 10, 2011 (Docke t No. 292327).-7- C. DR. MILEWSKI’S TESTIMONY

Defendants argue that the trial court abused its discretion by refusing to exclude Milewski’s testimony because he improperly proposed a negligenc e per se standard of care and because all of the factors in MCL 600.2955 weighed against the admissibility of his testimony. “Generally, expert testimony is r equired in a malpractice case in order to establish the applicable standard of care and to demonstrate that the professional breac hed that standard.” Sullivan v Russell , 417 Mich 398, 407; 338 NW2d 181 (1983). The proponent of exp ert testimony in a medical malpractice case must establish that the expert is qual ified under MRE 702, MCL 600.2955, and MCL 600.2169. MRE 702 requires a trial courtto determine that each aspect of a proposed expert witn ess’s testimony, including the underlying prin ciples and methodology, is reliable. MRE 702 states the following:

If the court determines that sc ientific, technical, or other s pecialized knowledge will assist the trier of fact to understand the evide nce or to determine a fact in issue, a witness qualified as an expert by knowledge, s kill, experience, training, or education may testify thereto in the form of an op inion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliabl y to the facts of the case.

Although not dispositive, a lac k of supporting medical literatu re applies to the determination of the admissibility of expert witness testimony. Edry v Adelman , 486 Mich 634, 640; 786 NW2d 567 (2010). “Under MRE 702, it is generally not sufficient to simply point to an expert’s experience and background to argue that the expert’s opinion is reliable and, therefore, admissible.” Id . at 642.

MCL 600.2955 requires a trial court to decide whether an exper t’s opinion is reliable and will assist the fact-finder through an examination of the opini on and its basis. The trial court must examine the facts, technique, method, and reasoning on whi ch the expert relied using the non-exhaustive followi ng list of factors:

(a) Whether the opinion and its basis have been subjected to s cientific testing and replication.

(b) Whether the opinion and its basis have been subjected to p eer review publication.

(c) The existence and maintenance of generally accepted standards governing the application and interpretation of a methodology o r technique and whether the opinion and its basis are consistent with those standards.

(d) The known or potential erro r rate of the opinion and its b asis.

(e) The degree to which the opinion and its basis are generall y accepted within the relevant expert community. As used in this subdivisi on, “relevant expert community” means individuals who are knowledgeable in th e field of study and are gainfully employe d applying that knowledge on the free market.-8- (f) Whether the basis for the opinion is reliable and whether experts in that field would rely on the same basi s to reach the type of opinionbeing proffered.

(g) Whether the opinion or methodology is relied upon by experts outside of the context of litigation. [MCL 600.2955(1).]

Defendants first argue that Milewski imposed an improper stand ard of care by testifying that all bile duct injuries during lap chole surgeries constitu te malpractice. At his deposition, in response to a question regarding whether a bile duct injury is a recognized risk of a lap chole, Milewski testified: “Oh, I understand it’s recognized. I don’t believe that it’s acceptable.” The following exchange also took place at Milewski’s deposition:

Q . Have you ever found a lap chole case where there was a bile duct injury where malpractice was not committed?

A . No.

Q . Okay. You always believe that malpractice was committed?

A . Absolutely.

Q . Okay. Have you ever testified otherwise?

A . I have not.

Milewski conceded that injury t o a bile duct is a recognized ri sk of the procedur e. Reviewing his testimony in context, however, he did not testify that it was i mpossible for a bile duct injury to occur absent malpractice, or that such an injury amounted to ne gligence per se. Rather, his testimony was that he had never reviewed a lap chole case in wh ich a bile duct injury occurred that was not the result of malpractice. Therefore, defendants misconstrue Milewski’s testimony regarding the standard of care an d the trial court did not abus e its discretion by refusing to exclude his testimony on this ground.

Moreover, at his deposition, Milewski testified that Sabir bre ached the standard of care in several respects beyond simply cutting the bile duct, which def endants do not address. Milewski testified that the standard of care is “what a similarly traine d surgeon would do under a similar set of circumstances.” He believed that it was necessary to op erate on plaintiff, and that Sabir acted properly by beginning the operation laparoscopically. Ho wever, Milewski testified that Sabir breached the standard of care by (1) failing to “conver[t ] to an open operation when the inflammation appeared as severe as it did,” (2) failing to “obt ai[n] the critical view, that being the identification of both the cystic duct and the cystic arter y prior to clipping or cutting either one of them,” (3) failing to recognize that the clip he chose “ was not big enough to go across the duct,” (4) using a GIA stapler in a critical area, and (5) atte mpting to repair the injury by performing a Roux-en-Y procedure as opposed to sending plaintif f off for tertiary care or to a hepatobiliary surgeon. In sum, defendants misconstrue Milewski ’s testimony and then fail to address his actual opinions regarding Sabir’s many breaches of the standard of care.-9- Defendants argue that the trial court erred by finding that Mi lewski’s testimony was reliable under the factors s et forth in MCL 600.2955(1), and be cause there was no medical literature supporting his opinion. 5 However, each of defendants’ arguments concerning the trial court’s application of the factors in MCL 600.2955(1) and the e xistence, or lack thereof, of supporting literature is predicat ed on the erroneous belief tha t Milewski testified that every incidence of bile duct injury o ccurring during a lap chole cons titutes malpractice. As discussed above, defendants misconstrue Mile wski’s standard of care testi mony. Accordingly, their arguments are immaterial to the c ircumstances as presented and do not warrant appellate relief. 6

Defendants next argue that Milewski’s testimony was inadmissib le because it irreconcilably conflicted with G reen’s testimony. In particular, defendants contend that Milewski testified that injury to the bile duct is always negli gence, while Green stated that such

5 On this point, defendants argue that we should apply our Supre me Court’s recent decision in Elher v Misra , 499 Mich 11; 878 NW2d 790 (2016), a case involving a bile duc t injury that occurred during a lap chole, to conclude that Milewski’s testim ony is inadmissible under MRE 702 and MCL 600.2955. In Elher , 499 Mich at 15, the plaintiff retained an expert who testified that, absent extensive inflammation or scarring, it w as always malpractice to injure the common bile duct during a lap ch ole. The expert opined that, b ecause the plaintiff in Elher did not have inflammation or scarri ng, the defendant was negligent in cutting the common bile duct, but he could not provide any supporting authority for his opini on. Id. Our Supreme Court concluded that the testimony failed to meet the requirements of MRE 702 and MCL 600.2955 because the opinion “was based on [the expert’s] own beliefs, t here was no evidence that [the] opinion was generally accepted within the relevant community, t here was no peer-reviewed medical literature supporting [the ] opinion, [the] plaintiff fa iled to provide any other support for [the] opinion, and [the] defendants submitted contradictory pee r-reviewed literature.” Id. at 28. This case is readily distinguishable from Elher in that Sabir encount ered significant inflammation when he began the lap chole, Milewski did not test ify that any injury to the bile duct during the procedure consti tuted malpractice, and, as disc ussed in more detail below, plaintiff presented peer-review ed literature supporting Milewsk i’s testimony regarding the standard of care.

6 Moreover, Milewski’s testimony regarding the standard of care was supported by medical literature offered by plaintiff. To her response to defendants ’ motion in limine, plaintiff attached a peer-reviewed article indicati ng that the presence of “inflam mation and scarring” during the performance of a lap chole “have led to the concept of ‘Stop Ru les’ for surgeons performing this operation. In essence, if a safe dissection cannot be ensured laparoscopically, early conversion to an open approach should be read ily accepted as the proper co urse.” Afdhal et al, Complications of Laparoscopic Cholecystectomy , UpToDate (January 30, 2014), pp 1-2. The article further explained that i f injury occurs during surgery, immediate repair of the injury should only be attempted “if the surgeon is comfortable with ad vanced biliary surgery. If not, the surgeon should obtain intra operative consultation with a sp ecialist who is skilled in this problem.” Id. at 3. “Repair of biliary duct i njuries should always be approa ched by an experienced multidisciplinary team consisting of a surgeon, dia gnostic radiologist, interventional gastroenterologist, and an interventional radiologist.” Id.-10- injury is not always the resul t of malpractice. Again, defenda nts misconstrue Milewski’s testimony in this regard. Defendants further assert that the two experts disagree about whether it was necessary to proceed with the lap chole on the night in que stion, and when the procedure should have been converted from a laparoscopic to an open surge ry. In Chapin v A & L Parts, Inc , 274 Mich App 122, 127; 732 NW2d 578 (2007), this Court explai ned:

The facts that an opinion held by a properly qualified expert i s not shared by all others in the field or that there exists some conflicting evide nce supporting and opposing the opinion do not necessarily render the opinion “unr eliable.” A trial court does not abuse its discretion by nevertheless admitting t he expert opinion, as long as the opinion is rationa lly derived from a sound foundati on.
Defendants have not presented a ny evidence suggesting that Mil ewski and Green based their expert opinions on unsound principles, reasoning, or meth odology. Both experts agree that when Sabir encountered the sever e inflammation inside of plaint iff, he should have converted from a lap chole to an open procedure so he could see what he w as doing and avoid cutting the bile duct. The slight differences in Green’s and Milewski’s te stimony do not suggest that their opinions were unsound or unreliable. Therefore, the trial court did not abuse its discretion by refusing to exclude the testimony on this basis.

Finally, defendants argue that Milewski should not be allowed to testify regarding the propriety of Sabir performing the Roux-en-Y because he lacked t he experience necessary to provide any opinion on the procedur e. Milewski did not critici ze Sabir’s actual performance of the failed Roux-en-Y, but rather argued that Sabir should not h ave attempted the procedure because of his inadequate training and experience. Milewski wa s board-certified as a general surgeon, the same specialty as Sabir at the time he performed t he lap chole and Roux-en-Y procedures on plaintiff. Alt hough he did not profess to be an expert on performing a Roux-en-Y, he stated that the procedure should only be attempted by a surg eon who had training and experience in performing that procedure. Knowledge that the pr ocedure was tricky and should not be attempted by a novice was well within M ilewski’s area of expertise, and was supported by medical literature. Therefore, the trial court did not abuse i ts discretion by refusing to exclude his testimony on this ground.

IV. MOTION FOR PARTIAL SUMMARY DISPOSITION

A. STANDARD OF REVIEW

We review a trial court’s deci sion regarding summary dispositi on de novo. Johnson v Recca , 492 Mich 169, 173; 821 NW2d 520 (2012). A motion under MCR 2 .116(C)(10) tests the factual sufficiency of the complaint. Joseph v Auto Club Ins Ass’n , 491 Mich 200, 206; 815 NW2d 412 (2012). In evaluating a motion brought under MCR 2.11 6(C)(10), the reviewing court considers affidavits, pleadings, depositions, admissions and other evidence of the parties in the light most favorable to the nonmoving party. Id . “Summary disposition under MCR 2.116(C)(10) is appropriately grant ed if there is no genuine is sue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Greene v A P Prod, Ltd , 475 Mich 502, 507; 717 NW2d 855 (2006) (citati on and quotation marks omi tted).-11- B. DISCUSSION

Defendants argue that the trial court erred by denying their m otion for summary disposition regarding plaintiff’ s vicarious and direct liabilit y claims against St. John and Providence related to Sabir’s ac tions. We agree with defendant s about plaintiff’s direct liability claim, but conclude that the tria l court properly denied their motion regarding vicarious liability.

1. ACTUAL AGENCY

Defendants first argue that Sabir was not an actual agent of the hospital because he was an independent contractor. A hospital may be held vicariously liable for the negligence of its agents, including physicians. Cox v Flint Bd of Hosp Managers , 467 Mich 1, 11; 651 NW2d 356 (2002). However, “a ho spital is not vicari ously liable for the negligence of a phys ician who is an independent contractor and merely uses the hospital’s facilitie s to render treatment to his patients.” Grewe v Mt Clemens Gen Hosp , 404 Mich 240, 250; 273 NW2d 429 (1978). An independent contractor is “one who, carrying on an independent business, contracts to do work without being subject to the right of control by the employer a s to the method of work but only as to the result to be accomplished.” Candelaria v BC Gen Contractors, Inc , 236 Mich App 67, 73; 600 NW2d 348 (1999) (citation and quotation marks omitted).

Defendants claim that Sabir was not an employee of the hospita l because he was employed by MRG, a distinct corporate entity. Defendants point out that Sabir testified that he was on-call for Kolachalam, not t he hospital, at the time he pe rformed plaintiff’s surgery. Additionally, defendants provided an affidavit of William E. Kr ueger, a senior claims analyst for the hospital, in which he state d that Sabir was employed by MRG , rather than the hospital.

In response, plaintiff provided the testimony of Sabir, in whi ch he stated that he believed he was an employee of the hospital:

Q . Who were you employe d by as of July of 2010?

A . St. John Providence.

Q . Okay. I saw a reference to—in the answers to an entity Medi cal Resource Group?

A . Medical Resource Group is part of the hospital.

Q . Okay. So that is St. John Providence Assencion [sic] Health ? . . . But as far as your checks, basically said something other than Medi cal Resource Group on them, do they not?

A . Yes. All I know is that when I signed my contract, it was w ith one of the administrators, administrator for the hospital, I spoke to to get the contract, so I know I answer only to the, you know, the administrators of th e hospital. . . . I want to say St. John Hospital at the end of the day is probably , you know, writes me the checks.-12- Plaintiff presented evidence that St. John is the sole member o f MRG, and that as part of its articles of incorporation, St. John reserved the right to “[a]p prove any managed care contractual arrangement on behalf of the Corp oration or any controlled corp orations including, without limitation, direct contracting a rrangement with employee groups .” Because the record contains competing evidence regarding Sabir’s employment status, the tri al court did not err by denying defendants’ motion for summary di sposition on plaintiff’s actua l agency claims.

2. OSTENSIBLE AGENCY

Next, defendants contend that n o ostensible agency existed bet ween Sabir and the hospital because plaintiff had a preexisting relationship with a referring physician. A hospital may be vicariously liable for negligent acts of its ostensible agents. Grewe , 404 Mich at 250- 251. The proper inquiry is whether “the individual looked to t he hospital to provide him with medical treatment and there has been a representation by the ho spital that medical treatment would be afforded by physicians working therein.” Id . An independent re lationship between a physician and a patient that preceded a patient’s admission to a hospital bars a finding of ostensible agency. Zdrojewski v Murphy , 254 Mich App 50, 66; 657 NW2d 721 (2002).

At her deposition, plaintiff tes tified that, after two visits to the emergency room, she spoke with Dr. Zoghlin over the phone and the doctor arranged f or plaintiff to have an ultrasound. There was no prescription, and plaintiff merely pr esented to a clinic for the test. Over the phone, Zoghlin then told plaintiff to go to the hospit al, and plaintiff went to Providence Park Hospital. Plaintiff testified that she did not know if Zo ghlin made any arrangements for her to see a particular physician at the hospital. She just direct ed plaintiff to go to the hospital.

Defendants contend that plain tiff’s contact with Zoghlin was apreexisting physicianpatient relationship, and that Z oghlin referred plaintiff to Ko lachalam, who was not the on-call general surgeon for th e hospital on the day of plaintiff’s surg ery. Plaintiff asserted that she was never “treated” by Zoghlin, and that whether Zoghlin referred p laintiff to Kolachalam was irrelevant because plaintiff was treated by Sabir. Given this conflicting evidence, the trial court did not err by concluding that a material, factual dispute exis ted regarding whethe r plaintiff had a pre-existing relati onship with a referring physician or merely sought treatment from the hospital.

Defendants claim that there can be no finding of ostensible ag ency because the hospital did not hold Sabir out as its agent. In Chapa v St Mary’s Hosp of Saginaw , 192 Mich App 29, 33; 480 NW2d 590 (1991), this Court held that “[n]othing in Grewe indicates that a hospital is liable for the malpractice of independent contractors merely be cause the patient ‘looked to’ the hospital at the time of admissi on or even was treated briefly b y an actual nonnegligent agent of the hospital.” Rather, to prove o stensible agency, “(1) the pe rson 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 pri ncipal sought to be charged, and (3) the person relying on the ag ent’s authority must not be gui lty of negligence.” Id . at 33-34.

Defendants contend that the hospital did not identify Sabir as its agent. Defendants presented plaintiff’s signed consent form, in which she acknowl edged that “some of the physicians who manage the care are independent physicians and n ot agents, representatives, or employees of the facility.” Plaintiff contends that the hospit al neglected to inform her that Sabir-13- was not a staff doctor, which was sufficient to establish osten sible agency. Plaintiff explained that she presented to the hospital as an emergency case and she did not present to a specific physician. Plaintiff said she be lieved she was being treated b y the hospital, and by admitting her, the hospital represented that she would be treated. Given her pain and distress when she arrived, plaintiff did not unreasonably fa il to ask whether the individu al doctor who treated her was an employee of the hospital or an independent contractor. See Grewe , 404 Mich at 253. Under the circumstances, plaintiff could have reasonably believed that de fendant Sabir was an employee of the hospital. Accordingly, the trial court did not err by deny ing defendants’ motion for summary disposition on plaintiff’s ostensible agency claim.

3. DIRECT LIABILITY

Finally, defendants argue that there was no testimony to suppo rt plaintiff’s claim of direct liability in this case. A hospital may be directly liable for malpractice through claims of negligence in supervision of sta ff physicians in addition to se lection and retention of medical staff. Cox , 467 Mich at 11. Although plaintiff brought a claim of direct liability against the hospital, her allegations pertain only to the actions or omissi ons of the physicians, and she failed to provide any legal authority i n support of her claim. Withou t properly asserting her claim or providing substantiating authority, the trial court should have granted defendants’ motion for summary disposition on this claim.

Affirmed in part, reversed in part, and remanded for further p roceedings consistent with this opinion. We do not retain jurisdiction. No costs pursuan t to MCR 7.219, neither party having prevailed in full.

/s/ Michael F. Gadola /s/ Deborah A. Servitto /s/ Douglas B. Shapiro