COA 373551 ESTATE OF BERNIE LEYNELL NELSON V HURLEY MEDICAL CENTER Opinion - Per Curiam - Unpublished 8/28/2026

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
ESTATE OF BERNIE LEYNELL NELSON by
SHOYNEESE CHILES, Personal Representative,
and EUGENE NELSON, SR.,
Plaintiffs-Appellants,
UNPUBLISHED
August 28, 2026
3:10 PM
v No. 373551
Genesee Circuit Court
HURLEY MEDICAL CENTER, LC No. 21-115525-NH
Defendant-Appellee,
and
BOARD OF HOSPITAL MANAGERS FOR THE
CITY OF FLINT, PHYSICIAN COVERAGE
SERVICES, PC, doing business as MICHIGAN
HEALTH SPECIALISTS, GUL RAJ SACHWANI-
DASWANI, DO, TAREQ ISMAIL MARAQA,
M.D., AND LEO C. MERCER, JR.,
Defendants.
Before: GADOLA, C.J., and BOONSTRA and CAMERON, JJ.
BOONSTRA, J. (dissenting).
I respectfully dissent and would affirm the trial court’s grant of summary disposition to
defendant Hurley Medical Center (the hospital)1 because the hospital took sufficient action to
dispel the decedent’s (Bernie Leynell Nelson) belief that her treating physicians were hospital
employees. I write separately to reiterate and expand on my interpretation of Markel v William
Beaumont Hosp, 510 Mich 1071 (2022) (Markel II), as previously expressed in Stempniak v Prime
1 The hospital is a public safety-net hospital owned by the city of Flint. It is operated by defendant
Board of Hospital Managers for the City of Flint, pursuant to the Flint City Charter.

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Healthcare Servs – Garden City, LLC, unpublished opinion of the Court of Appeals, issued July
27, 2023 (Docket No. 361018).
As the majority acknowledges, when Nelson was admitted to the hospital on January 30,
2018, she signed a consent-for-services form that stated, in relevant part:
I understand that my healthcare services are directed by my physician(s), and that
facility personnel provide services according to the physicians’ instructions. . . . I
also understand that some physicians directing my services are not agents or
employees of the facility, but are independent physicians who have been granted
the privilege of using its facilities for the care and treatment of their patients.
A week later, after her initial treatment in the emergency room and by other medical
professionals, defendant Gul Raj Sachwani-Daswani, D.O. (Dr. Sachwani) performed a
percutaneous tracheostomy on Nelson. It is undisputed that Dr. Sachwani was not employed by
the hospital but rather was an employee of The Hurley Clinics2 and had privileges at the hospital.
Plaintiffs now seek to hold the hospital accountable, under a theory of ostensible agency, for Dr.
Sachwani’s alleged negligence.3
Generally, a hospital is not liable for the alleged negligence of an independent contractor
using the hospital’s facilities to provide medical treatment. Grewe v Mt Clemens Gen Hosp, 404
Mich 240, 250; 273 NW2d 429 (1978). But an exception exists under a theory of ostensible agency
when the hospital “causes a third person to believe another to be his agent who is not really
employed by him.” Id. at 252 (quotation marks and citation omitted). A “critical question 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.” Id. at 251.4 However,
[n]othing in Grewe indicates that a hospital is 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
2 The Hurley Clinics is a Domestic Nonprofit Corporation that was incorporated in Michigan in
1995. It does business as The Hurley Clinic.
3 In opposing the hospital’s motion for summary disposition, plaintiffs admitted that Dr. Sachwani
was not a hospital employee, but was instead an independent contractor, and plaintiffs then pursued
their claim against the hospital (relative to Dr. Sachwani) under a theory of ostensible agency.
4 The majority seizes upon the “critical question” language from Grewe to support its conclusion
that the consent form in this case could not dispel a patient’s reasonable belief regarding whether
a doctor is an agent of a hospital. However, “this Court has clarified that [Grewe’s ‘critical
question’] is not the only question.” Wiegand v Yamasaki, MD, unpublished per curiam opinion
of the Court of Appeals, issued December 19, 2017 (Docket No. 334598), p 2, citing Chapa v St
Mary’s Hosp of Saginaw, 192 Mich App 29, 33; 480 NW2d 590 (1992) (citing Grewe, 404 Mich
at 252-253).

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the hospital. Such a holding would not only be illogical, but also would not comport
with fundamental agency principles noted in Grewe and subsequent cases. Those
principles have been distilled into the following three elements[5] that are necessary
to establish the creation of an ostensible agency: (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
apparent authority must not be guilty of negligence.” [Chapa v St Mary’s Hosp of
Saginaw, 192 Mich App 29, 33; 480 NW2d 590 (1992), citing Grewe, 404 Mich
at 252-253.]6
5 As the majority notes, our Supreme Court reiterated these three elements in Markel II, yet it is
apparent from Grewe and the various opinions in Markel, including Markel II’s “put another way”
juxtaposition of the first two elements, Markel II, 510 Mich at 1071-1072, that our Supreme Court
has addressed the requirements for proving ostensible agency not as distinct elements, but rather
as interrelated ones. The third element was a recognition by the Court in Grewe that “the plaintiff
must rely on the agent’s apparent authority.” Markel v William Beaumont Hosp, 22 NW3d 545,
547 (Mich, 2025) (Markel IV).
6 I note that plaintiffs mis-cite Chapa as supposedly standing for the proposition that “consent
forms alone are insufficient to defeat ostensible agency claims if other factors indicate that the
patient looked to the hospital, not the individual physician, for treatment.” But Chapa says no
such thing; indeed, in affirming the dismissal of the plaintiff’s claim, Chapa nowhere mentioned
consent forms or other disclaimers. Plaintiffs similarly misrepresent this Court’s holding in
VanStelle v Macaskill, 255 Mich App 1; 662 NW2d 41 (2003), overruled in part by Markel II, 510
Mich 1071. Like Chapa, VanStelle did not address consent forms or disclaimers (contrary to
plaintiffs’ representation that the Court in that case “emphasized that a mere disclaimer in a consent
form is not determinative where there are other factors indicating that the patient believed the
doctor was acting on behalf of the hospital”). Nor did the Court in Howard v Park, 37 Mich App
496; 195 NW2d 39 (1972), again notwithstanding plaintiffs’ representation to the contrary.
Finally, plaintiffs misrepresent the Supreme Court’s decision in Markel II as “reject[ing] the notion
that a consent form alone was enough to defeat a claim of ostensible agency.” Once again, the
Court in Markel II did not discuss consent forms (or other disclaimers) and instead held that a
hospital need only do “something to dispel,” “in some manner,” a patient’s belief. Markel II, 510
Mich at 1071-1072. Markel II only briefly mentioned Judge Hoekstra’s dissenting opinion in
Reeves v MidMich Health, unpublished per curiam opinion of the Court of Appeals, issued
September 30, 2010 (Docket No. 291855), in which he stated that “the hospital did not
affirmatively act to create a belief of ostensible agency through its consent forms and lab coat
insignia.” Markel II, 510 Mich at 1073. But the consent form in Reeves, unpub op at 3, did not
include any disclaimers about the doctors’ employment status. Instead, the form was admitted as
evidence that the hospital affirmatively represented the patient’s doctor to be its agent. Id. at 3-4.
Markel II’s criticism of the Reeves dissent only means that a consent form is not needed to create
an ostensible agency if a patient presents to the emergency room with no prior relationship to the
doctor, not that a consent form cannot dispel a belief regarding agency.

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In VanStelle v Macaskill, 255 Mich App 1, 11; 662 NW2d 41 (2003), overruled in
part by Markel II, 510 Mich 1071, this Court summarized the law regarding a doctor’s
ostensible agency as follows:
Agency “does not arise merely because one goes to a hospital for medical care.
There must be some action or representation by the principal (hospital) to lead the
third person (plaintiff) to reasonably believe an agency in fact existed.” Sasseen v
Community Hosp Foundation, 159 Mich App 231, 240; 406 NW2d 193 (1986).
Further, the fact that a doctor used a hospital’s facilities to treat a patient is not
sufficient to give the patient a reasonable belief that the doctor was an agent of the
hospital. Heins v Synkonis, 58 Mich App 119, 124; 227 NW2d 247 (1975).
This Court then decided several ostensible-agency cases in which the plaintiff had signed
a consent form that included a notice that some or all doctors providing services were independent
contractors. See, e.g., Wiegand v Yamasaki, MD, unpublished per curiam opinion of the Court of
Appeals, issued December 19, 2017 (Docket No. 334598), p 3-4 (some doctors); Purcell v Sturgis
Hosp, unpublished per curiam opinion of the Court of Appeals, issued December 11, 2008 (Docket
No. 277793), p 3-4 (all doctors); Tansil v Sherrod, unpublished per curiam opinion of the Court of
Appeals, issued November 26, 2002 (Docket No. 237002), p 2 (all doctors).7 In each case, this
Court held that the consent form detracted from any reasonable belief that the doctor was an agent
of the hospital. Wiegand, unpub op at 4 (holding that the record lacked evidence of some action
or representation to lead the decedent to reasonably believe an agency existed); Purcell, unpub op
at 4 (holding that “any belief” in the doctors’ agency was “not reasonable” because it was
“specifically negated by the plain language contained in the release and consent forms”); Tansil,
unpub op at 2 (holding that the consent form precluded any reasonable belief that the doctors were
agents).
Our Supreme Court later reiterated the elements of an ostensible agency in Markel
II, 510 Mich at 1071, citing Grewe, 404 Mich at 253, and held that a plaintiff has a
“reasonable belief” that a doctor is the agent of the hospital when the plaintiff “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, . . . unless the hospital does something to dispel
that belief.” (Emphasis added). In other words, “the patient’s belief that a doctor is the
hospital’s agent is reasonable unless dispelled in some manner by the hospital or the
treating physician.” Id. at 1072 (emphasis added). See also Markel v William Beaumont
Hosp, 22 NW3d 545, 545 (Mich, 2025) (Markel IV).
Our Supreme Court also held that VanStelle overlooked that under Grewe, either an
affirmative act or neglect may create an ostensible agency, and it overruled VanStelle “to the extent
that [it] requires a plaintiff to show some additional, affirmative act by the hospital in every
emergency room case to prove ostensible agency.” Markel II, 510 Mich at 1072. Wiegand,
Purcell, and Tansil were decided before Markel II, and they relied in part on principles stated in
7 Unpublished opinions are nonbinding but may be considered for their persuasive value. Cox v
Hartman, 322 Mich App 292, 307; 911 NW2d 219 (2017).

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VanStelle that Markel II overruled (i.e., that there must be evidence of some act or neglect beyond
the operation of an emergency room). But the reasoning of those cases with respect to the effect
of consent forms was not overruled by Markel II and remains persuasive. That is, this Court has
long held that a written notice of a doctor’s independent-contractor status weighs against finding
a patient’s belief in her doctor’s agency to be reasonable. Wiegand, unpub op at 3-4, Purcell,
unpub op at 3-4, Tansil, unpub op at 2.
I agree with the majority that under Markel II and Markel IV, it would have been reasonable
for Nelson to believe that Dr. Sachwani was an agent of the hospital. She presented to the
hospital’s emergency room, and during her hospital stay she was treated by Dr. Sachwani, with
whom she had no prior relationship. However, the hospital sufficiently acted to dispel any belief
that Nelson may have held that Dr. Sachwani was an agent of the hospital. In Markel II, our
Supreme Court recognized that it had, in Grewe, “acknowledged as significant that there was
‘nothing in the record which should have put the plaintiff on notice that [the doctor] . . . was an
independent contractor as opposed to an employee of the hospital.’ ” Markel II, 510 Mich at 1071,
quoting Grewe, 404 Mich at 253. Markel II thus established that an emergency-room patient’s
belief (that a doctor is a hospital employee) is reasonable “unless the hospital does something to
dispel that belief.” Markel II, 510 Mich at 1071. The Court explained in Markel II that Grewe
held “that when a patient presents at the emergency room for treatment, the patient’s belief that a
doctor is the hospital’s agent is reasonable unless dispelled in some manner by the hospital or the
treating physician.” Id. at 1072 (emphasis added). See also Markel IV, 22 NW3d at 545, 547.
And it emphasized that “Grewe remains our rule.” Markel II, 510 Mich at 1073.
In this case, the hospital presented Nelson with a General Consent for Services form—
which she signed—that stated, in relevant part:
I understand that my healthcare services are directed by my physician(s), and that
facility personnel provide services according to the physicians’ instructions. . . . I
also understand that some physicians directing my services are not agents or
employees of the facility, but are independent physicians who have been granted
the privilege of using its facilities for the care and treatment of their patients.
The hospital thereby did “something to dispel [any] belief” that Nelson may have had that
Dr. Sachwani was an agent of the hospital. Markel II, 510 Mich at 1071. The majority holds that
the consent form was insufficient to negate that belief because it only stated that some physicians—
not Dr. Sachwani specifically—were independent contractors. But such specific notice is not
required—Markel II merely requires that the hospital do something to dispel the reasonable
assumption that any doctor working out of the hospital is its agent. Id. To hold that a hospital
must inform patients about the employment status of each person involved in their treatment would
be extremely impractical, especially when the patient requires immediate medical attention. See
Markel II, 510 Mich at 1082 (VIVIANO, J., dissenting) (“It is not clear whether delaying treatment
to provide this information would even be medically ethical let alone efficacious in helping
distressed patients decide whether to seek treatment at the hospital.”). The majority’s position
applies a nearly insurmountable standard, causing the ostensible-agency exception to swallow the
rule that a hospital generally is not liable for the alleged negligence of an independent contractor
using its facilities. See Grewe, 404 Mich at 250.

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The majority follows a concerning trend in this Court’s recent, unpublished opinions that
have addressed whether a consent form can preclude a claim of ostensible agency after Markel II.
For example, in Webb v Hillsdale Hosp, unpublished opinion of the Court of Appeals, issued
November 19, 2024 (Docket No. 364728), p 2,8 a patient presented to the emergency room at
Hillsdale Hospital, where she signed a consent form that included the following: “Your doctors
are not employees or agents of the hospital. They are independent contractors.” The majority
opinion in that case stated:
[A] consent form is a critical piece of evidence that can negate a patient’s
reasonable belief that the physician is an agent of the hospital, but it does not
destroy an ostensible agency claim. Cases from this Court have traditionally found
a consent form as stronger evidence that an ostensible agency relationship is
lacking. . . . However, this court and the Supreme Court have never held that a
consent form per se precludes the existence of ostensible agency and here, the
record reflects a question of fact as to whether this form could. [Id. at 6.]
According to the Webb majority, other statements in the consent form could have reinforced the
belief that the doctors were agents of the hospital, so a genuine issue of material fact remained
regarding whether the consent form was effective in dispelling that belief. Id. Judge Riordan
dissented—he would have held that the consent form’s statement that the patient’s doctors were
independent contractors, standing alone, entitled the hospital to summary disposition. Id.
(RIORDAN, J., dissenting) at 2 (“ ‘A patient who has clear notice of a treating physician’s
employment status . . . cannot reasonably assume that the same physician is an employee of the
hospital merely because treatment is provided within a hospital.’ ”), quoting Markel II, 510 Mich
at 1071.
In Stempniak, unpub op at 2, the patient presented to the emergency room and signed a
consent form that stated, “Some doctors and staff are not employees of Garden City Hospital. I
know that Garden City Hospital is not responsible for their actions.” Id. (emphasis added). She
then received allegedly negligent care from her surgeon, Dr. Gross. Id. The Stempniak majority
held that the consent form did not defeat the patient’s ostensible-agency claim:
While the [consent form] arguably informed Stempniak that “some” doctors and
staff were not employees of Garden City Hospital, it did not provide her with any
information regarding Dr. Gross’s employment status. Further, Stempniak testified
that she had no memory of signing the form, no memory of whether its contents
were explained to her, and no understanding of what it meant because she was in
significant pain at the time that she signed it. . . . Viewing the evidence in the light
most favorable to Stempniak as the non-moving party, we find that there is a
genuine issue of material fact whether Stempniak had a reasonable belief that Gross
8 The Hillsdale Hospital’s application for leave to appeal this Court’s decision in Webb is pending
in our Supreme Court. Webb v Hillsdale Hosp, 26 NW3d 742 (Mich, 2025).

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was an agent of the hospital and thus affirm the trial court’s denial of the hospital’s
motion for summary disposition. [Id. at 4-5.]
I dissented and would have held that the “some doctors” language was sufficient to defeat
the patient’s ostensible-agency claim:
[T]he majority discounts or ignores the affirmative act taken by the hospital to
dispel any belief that Stempniak might have had that Dr. Gross was Garden City
Hospital’s employee. . . . [T]he majority apparently posits that, in order for the
General Consent for Treatment form to have been effective, it must have
specifically named Dr. Gross. This is simply not the law, nor is it required by
Grewe or Markel. [Id. (BOONSTRA, J., dissenting) at 2-3.]
See also Wiegand, unpub op at 3-4 (addressing a consent form stating that some doctors were
independent contractors).
My position has not changed. Indeed, as in Stempniak, it would be preposterous to suggest
that the General Consent for Services form in this case was advising Nelson that some other
patient’s doctors were not agents of the hospital. It of course was advising Nelson that her own
doctors— including Dr. Sachwani—were not (or at least may not be) employees of the hospital,
and that the hospital was therefore not responsible for their actions. By signing the form, Nelson
affirmed her agreement to those terms, and she unmistakably did so in relation to her own provider,
Dr. Sachwani, not someone else’s provider. See Stempniak (BOONSTRA, J., dissenting), unpub op
at 3. And because “parties are bound by the documents they sign, as they are presumed to be aware
of the contents of those documents; the failure to read a document is no excuse.” Id., citing Galea
v FCA US LLC, 323 Mich App 360, 369; 917 NW2d 694 (2018). Nelson’s actual belief regarding
whether Dr. Sachwani was an independent contractor is therefore irrelevant.
The dissenting opinions in Webb and Stempniak are more persuasive than the majority
opinions. The majority in those cases misapplied Grewe and Markel by requiring the hospital to
affirmatively create the belief that the treating physician is an independent contractor. But the law
only requires the hospital to do something, in some manner, to dispel the belief that the physician
is an employee or other agent. Markel II, 510 Mich at 1071-1072. Putting the patient on notice
that her treating physician may not be a hospital employee is sufficient to dispel a belief that the
doctor is a hospital employee, to make any such belief unreasonable, and therefore to defeat a
claim of ostensible agency. Consequently, a signed consent form that states that some doctors
providing services to the patient are not agents or employees should defeat an ostensible agency
claim unless there is evidence that the consent form is void or unenforceable or that the hospital,
through some additional affirmative action, renewed the reasonable belief that the specific
physician alleged to have rendered negligent services was an agent or employee. This
interpretation is consistent with how this Court has traditionally viewed consent forms in Wiegand,
Purcell, and Tansil, as well as with Markel II’s restatement of the rule in Grewe that a belief by a
patient (who presents to the emergency room for treatment by a doctor with whom she has no prior
existing relationship) that her doctor is the hospital’s agent is reasonable unless the hospital does
something to dispel that belief. Markel II, 510 Mich at 1071-1072.

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In this case, plaintiffs do not allege that Nelson signed the consent form under duress, that
her signature was obtained through fraud, or that the form was otherwise invalid. The disclaimer
that some physicians were not agents or employees gave Nelson “clear notice” that her treating
physician may not be an employee and that she should inquire about the employment status of a
particular physician if that status was of significance to her in relation to her consent for medical
treatment. See Markel II, 510 Mich at 1071. In other words, she could not have reasonably
believed, in light of the consent form, that Dr. Sachwani was the hospital’s agent or employee.
Under these circumstances, and because the record does not indicate that the hospital took any
additional action to represent that Dr. Sachwani was its agent or employee, the trial court properly
granted summary disposition to the hospital under MCR 2.116(C)(10).9 For these reasons, I
respectfully dissent.
/s/ Mark T. Boonstra
9 I note that neither my interpretation of the law nor the trial court’s decision (granting summary
disposition to the hospital) would leave plaintiffs without a remedy. When it granted the hospital’s
motion for summary disposition, the trial court only dismissed plaintiffs’ claims against defendants
Hurley Medical Center and the Board of Hospital Managers for the City of Flint (as well as those
against defendant Dr. Tareq Ismail Maraqa, which aspect of the order is not at issue in this appeal).
But plaintiffs still have pending claims against defendants Dr. Sachwani, Dr. Leo Mercer, Jr., and
Physician Coverage Services, P.C. And if they prevail, plaintiffs’ damages may be covered by
any liable party’s medical-malpractice insurer. See Welke v Kuzilla, 144 Mich App 245, 254; 375
NW2d 403 (1985) (“In the typical malpractice action, the doctor is able to insure against the risk
of liability through the required malpractice insurance.”) (quotation marks and citation omitted).

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