The Michigan Supreme Court has agreed to hear arguments on whether a patient's signed consent form alone is enough to defeat a medical malpractice suit claiming a Michigan hospital was responsible for an independent contractor physician's alleged negligence.

The justices on Friday ordered oral argument on Hillsdale Hospital's application for leave to appeal a lower appellate court decision that found there was still a question of fact as to whether an independent gynecologist was an ostensible agent of the hospital when he performed surgery there on a patient who later sued for medical malpractice.

Hillsdale Hospital is urging the state's top court to reinstate a trial court decision that ruled a consent form informing the patient her doctor was not employed by the hospital and a preexisting relationship between the patient and the physician were enough to determine the hospital did not have ostensible agency over the gynecologist.

The hospital argued that a divided Michigan Court of Appeals panel improperly considered each piece of evidence in isolation when reversing the trial court decision in November 2024.

In its application for leave to appeal in December, the hospital said that if it were allowed to stand, the intermediate appellate opinion "makes it almost impossible to defeat a claim of ostensible agency against a hospital."

The patient in the case, Darlene Webb, was seeking treatment with the doctor rather than the hospital, had a preexisting relationship with that provider and signed consent forms informing her that the provider was not an agent of the hospital, the hospital argued in its application.

"This contradicts existing law in Michigan. Allowing ostensible agency cases to move forward, despite there being no evidence to support the claim, defeats the purpose of summary disposition motions," the hospital said.

The justices asked the parties to address whether the existence of a signed notice that the physician was an independent contractor by itself defeats the patient's ostensible agency claim and, if not, whether the particular facts of the case are enough to support Webb's ostensible agency claim.

Webb filed the medical malpractice suit in 2021 over complications she suffered from the removal of an ovarian mass in 2019 by gynecologist Alfred K. Bediako at Hillsdale Hospital. Webb alleged Bedaiko was an employee, agent or ostensible agent of the hospital, making the hospital vicariously liable for his alleged negligence.

In November 2024, a divided panel in an unpublished decision reversed the trial court's summary disposition ruling in Webb's suit, finding Webb established a genuine fact dispute regarding whether she really believed Bedaiko was acting as the hospital's agent at the time of the 2019 surgery.

In Webb's case, the consent form, which was a Hillsdale Hospital form, stated that "your doctors are not employees or agents of the hospital" but also stated that the patient authorizes Hillsdale "to provide its appropriate hospital services and care necessary in conjunction with the procedures above described," according to the majority opinion. It was unclear whether Webb signed the forms at Bedaiko's clinic or the hospital.

The physician's scrubs said "Dr. Bediako, OB Department," and his clinic, Hillsdale Obstetrics and Gynecology PC, has a similar name to Hillsdale Hospital. Given this, it is reasonable for a patient to infer that the department to which Bediako belonged is part of the hospital, the majority held.

The majority said the Michigan Court of Appeals or Michigan Supreme Court have never held that a consent form by itself precludes the existence of ostensible agency.

A dissenting appellate judge said the preexisting relationship and the fact that Webb signed a consent form that said the hospital did not employ Bedaiko was enough to defeat a claim for ostensible agency.

Webb first saw Bediako at his clinic in 2007, when an ultrasound revealed a left ovarian mass, for which Bediako did not recommend treatment, according to the majority opinion. Twelve years later, Webb began experiencing pain in her lower abdomen and incontinence, and an ultrasound at Hillsdale Hospital revealed an ovarian mass and an ovarian cyst. The hospital referred her to Bediako. She saw him twice before surgery to remove the ovarian mass.

The majority opinion said there are genuine issues of fact that a jury should contemplate, including that a dozen years had passed since Webb's initial encounter with Bediako, that the hospital referred Webb to Bediako and that the ultrasounds and blood test needed to determine whether to remove the ovarian mass occurred at the hospital.

The justice's Friday order asks the parties to consider whether the facts in Webb's case are enough to support an ostensible agency claim under the 1978 Michigan Supreme Court decision Grewe v. Mt. Clemens General Hospital and the case Markel v. William Beaumont Hospital.

The Michigan Supreme Court heard oral arguments in the latest round of appeals in the Markel case in April, where Mary Anne Markel is seeking to hold William Beaumont hospital vicariously liable for the alleged medical malpractice of an independent physician.

Counsel for the parties did not immediately respond to requests for comment Monday.

Webb is represented by Mark Granzotto of Granzotto & Wittmann PC, Brian J. McKeen of McKeen & Associates PC and Steven C. Hurbis of Fieger Fieger Kenney & Harrington PC.

Hillsdale Hospital is represented by Michael W. Stephenson of Willingham & Coté PC and Peter A. Davis.

The case is Darlene Webb et al. v. Hillsdale Hospital et al., case number 167955, in the Michigan Supreme Court.