The Michigan Court of Appeals upheld a judgment for a patient in a medical malpractice case, where the patient suffered a perforated esophagus while undergoing surgery for a cancerous thyroid tumor. The jury relied on jury instructions that stated that the operating surgeon, the surgeon who assisted the operating surgeon, and a physician assistant were agents of the hospital and found all of the defendants to be liable for the plaintiff's injuries.

The hospital had attempted to prevent the issue of its liability from going to a jury, making a motion for summary judgment on the agency issue. This motion was denied by the trial court and was reviewed on appeal. The appeals court agreed with the hospital that the evidence of ostensible agency between the surgeon and the hospital was tenuous at best. The court also held that an independent relationship between a doctor and a patient preceding a patient's admission to a hospital precludes a finding of ostensible agency, unless the acts or omissions of the hospital override the impressions created by the pre-existing relationship and create a reasonable belief that the doctor is an agent of the hospital.

Ultimately, the court determined that there was a pre-existing relationship between the patient and the surgeon before she underwent surgery at the hospital, sufficient to preclude a finding of ostensible agency between the surgeon and the hospital. However, the court found that there was evidence supporting an agency relationship between the hospital and the assisting physician and the physician's assistant who assisted the surgeon in the patient's surgery. Because there was no evidence of a pre-existing relationship between the patient and these other individuals, and because during the surgery any one of these three individuals could have caused the patient's injury, the court held that the hospital's motion for summary judgment on the issue of ostensible agency was properly denied. Moreover, even if the lower court erred in denying the hospital's motion for summary judgment, such error was rendered harmless when the hospital failed to object to a jury instruction that specifically informed the jury that the surgeon, the assisting physician, and the physician assistant were agents of the hospital.