Randi Rock, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1716

Randi Rock,
Appellant,

vs.

Ahmed Abdullah, M.D.,
Respondent,

Essentia Health,
Respondent.

Filed July 18, 2022
Affirmed
Larkin, Judge

St. Louis County District Court
File No. 69DU-CV-21-1000

Dean M. Salita, Schmidt-Salita Law Firm, Minneapolis, Minnesota (for appellant)

Angela E. Lord, Bailey J. Fuchs, Vogel Law Firm, Fargo, North Dakota (for respondent
Essentia Health)

Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant-patient challenges the district court’s grant of summary judgment to
respondent-corporation in appellant’s medical-malpractice action, which was based on the
alleged negligence of a doctor who performed appellant’s plastic surgery at a hospital
2
operated by respondent. The doctor had surgical privileges at the hospital, but was not an
employee or independent contractor of the hospital. Because the undisputed facts show
that respondent is not vicariously liable for the alleged negligence of the doctor under a
theory of either respondeat superior or apparent authority, we affirm.
FACTS
In August 2017, Dr. Ahmed Abdullah performed a surgical procedure on appellant
Randi Rock at a hospital in Fargo, North Dakota. The hospital was operated by respondent
Essentia Health (Essentia). Essentia is a Minnesota nonprofit corporation that supports
organizations providing hospital, clinic, and other healthcare services in Minnesota, North
Dakota, and Wisconsin. Essentia does not employ healthcare providers or contract with
physicians. Accordingly, Dr. Abdullah was not an employee of Essentia. Dr. Abdullah
operated his own plastic surgery establishment in Fargo named the Plastic Surgery
Institute, and he had surgical privileges at m ultiple hospitals, including Essentia’s Fargo
hospital.
Rock sued Essentia and Dr. Abdullah for medical malpractice related to her surgical
procedure. She argued that Essentia was vicariously liable for Dr. Abdullah’s negligence
based on the doctrines of respondeat superior and apparent authority. Essentia moved for
judgment on the pleadings or summary judgment, asserting that Rock’s claim of vicarious
liability failed as a matter of law. The district court agreed and granted Essentia’s motion
for summary judgment.
3
Rock appeals.1
DECISION
Summary judgment is appropriate if the moving party shows that “there is no
genuine issue as to any material fact” and that the moving party is “entitled to judgment as
a matter of law.” Minn. R. Civ. P. 56.01. “We review a grant of summary judgment de
novo.” Henson v. Uptown Drink, LLC, 922 N.W.2d 185, 190 (Minn. 2019). In doing so,
we “view the evidence in the light most favorable to the party against whom summary
judgment was granted to determine whether there are any genuine issues of material fact
and whether the district court correctly applied the law.” Dukowitz v. Hannon Sec. Servs.,
841 N.W.2d 147, 150 (Minn. 2014).
“Summary judgment is inappropriate [if] reasonable persons might draw different
conclusions from the evidence presented.” Henson, 922 N.W.2d at 190 (quotation
omitted). But “[a] defendant is entitled to summary judgment as a matter of law [if] the
record reflects a complete lack of proof on an essential element of the plaintiff’s claim.”
Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).
In granting summary judgment in this case, the district court concluded that Rock
failed to establish a genuine issue of material fact regarding both her respondeat-superior
and apparent-authority theories of vicarious liability. Under the doctrine of respondeat
superior, “an employer is vicariously liable for the torts of an employee committed within

1 The district court dismissed the claims against Dr. Abdullah for lack of personal
jurisdiction. Rock does not challenge that ruling, and Dr. Abdullah is not a party to this
appeal.
4
the course and scope of employment.” Schneider v. Buckman, 433 N.W.2d 98, 101 (Minn.
1988). The district court concluded that the record does not support a finding of vicarious
liability based on a respondeat-superior theory because there is no evidence that Dr.
Abdullah was employed by Essentia. Rock does not assign error to that conclusion.
Instead, Rock challenges the district court’s conclusion that there is no genuine issue of
material fact regarding her apparent-authority theory of vicarious liability.
Under an apparent-authority theory of vicarious liability, a principal may be liable
for the negligence of its agent if it holds the agent out as having authority or knowingly
permits the agent to act on its behalf. Popovich v. Allina Health Sys ., 946 N.W.2d 885,
890-91 (Minn. 2020). Apparent authority “applies to any set of circumstances under which
it is reasonable for a third party to believe that an agent has authority, so long as the belief
is traceable to manifestations of the principal.” Restatement (Third) of Agency § 2.03 cmt.
c (2006).
In Popovich, the supreme court considered— for the first time—“whether hospitals
should be exempt from vicarious liability where a plaintiff seeks to hold a hospital
responsible for the medical malpractice of an independent contractor based on a theory of
apparent authority.” 946 N.W.2d at 890. The supreme court held that “a plaintiff may
assert a claim against a hospital to hold the hospital vicariously liable for the negligence of
a non-employee based on a theory of apparent authority.” Id. at 895. Next, the Popovich
court considered “the appropriate legal standard for apparent authority” in that context,
noting it had “never addressed apparent authority in the context of medical malpractice and
the hospital emergency room.” Id. at 895-96.
5
As to the appropriate standard, the supreme court began with the two basic
requirements for establishing a claim based on apparent authority. Id . at 895. First, the
principal must “have either held the agent out as having authority or knowingly permitted
the agent to act on its behalf.” Id. (quotations omitted). Second, there must be reliance,
that is, the plaintiff must have been aware of and relied on the principal’s representations
of authority. Id. The supreme court held that in the context of a claim against a hospital
for the medica l malpractice of an independent contractor, a plaintiff states a claim for
vicarious liability based on the doctrine of apparent authority if “(1) the hospital held itself
out as a provider of emergency medical care; and (2) the plaintiff looked to the hospital for
care and relied on the hospital to select the personnel to provide services to the plaintiff.”
Id. at 897. The supreme court noted that its newly adopted standard “mirrors” the
traditional elements of apparent authority: holding out and reliance. Id.
Rock heavily relies on Popovich as support for her apparent-authority claim.
Although Popovich specifically involved emergency medical care, we assume without
deciding that its newly articulated apparent -authority standard applies in a medical-
malpractice case stemming from non-emergency hospital care.
Under the first element of the Popovich standard, we consider “whether the hospital
represented itself in the community as a location where members of the public could seek
[the relevant] treatment from qualified medical personnel.” Id. In her affidavit opposing
summary judgment, Rock stated, “When I looked at the Essentia Health website I saw they
had a plastic surgery department.” Rock submitted a screenshot of Essentia’s websit e
showing that Essentia listed the Fargo hospital at which Rock received her surgery as one
6
of its locations for plastic and reconstructive surgery. Another screenshot is from the
website of Innovis Health, a limited liability company of which Essentia is the sole
member. That website provides information about the Fargo hospital and identifies Dr.
Abdullah as a doctor specialist who is available at the Fargo hospital.
2 Finally, a screenshot
of an advertisement for Essentia declares, “Compare Dr. Abdullah with our nearby
Cosmetic, Plastic & Reconstructive Surgery Specialists at Essentia Health.”
Essentia’s representations on its website are sufficient to raise a genuine issue of
material fact regarding the first element of apparent authority under the Popovich standard.
See id. at 897-98 (concluding that a hospital’s advertisements of the quality of its care were
sufficient to satisfy the holding-out element).
As to the second element of the Popovich standard, the supreme court explained that
“reliance,” focuses on the beliefs of patients and considers
whether the patient looked to the hospital, rather than to a
particular doctor, to provide care. Specifically, the fact-finder
should determine if the plaintiff relied on the hospital to select
the physician and other medical professionals to provide the
necessary services. This reliance standard reflects the reality
that most people who go to the emergency room do not know
which medical professionals will treat them once they arrive.
Instead, they rely on the hospital to select the professionals for
them. That is precisely what happened here — Allina assigned
the doctors who provided care to Mr. Popovich. The amended
complaint specifically alleges that Mr. Popovich went to Unity
Hospital seeking emergency medical care and relied on the
hospital to provide “an appropriate health care provider.”
Id. at 898 (emphasis added) (footnotes omitted).

2 Specifically, the website states, “In addition, you can meet the career of doctors specialists
such as Dr. Ahmed Abdullah. All Medical specialists who attend you delighted in Innovis
Health.”
7
Unlike the circumstances in Popovich, Essentia did not assign the doctor who
treated Rock. It is undisputed that Rock visited Dr. Abdullah’s Plastic Surgery Institute in
October 2016, and again in May 2017, to discuss her options for plastic surgery. It is also
undisputed that Rock decided that Dr. Abdullah would perform her surgical procedure and
that Dr. Abdullah told Rock that the surgery would occur at Essentia.
Nonetheless, Rock argues that her affidavit raises a genuine issue of material fact
regarding reliance under Popovich. Her affidavit states, “I was given a reasonable
impression that Dr. Abdullah was affiliated with Essentia Health and based on that I hired
Dr. Abdullah to perform my surgery.” Her affidavit further states that “Dr. Abdullah
informed me that my surgery would take place at Essentia Health, thereby representing
himself as a doctor affiliated with them.” Although Dr. Abdullah’s affiliation with Essentia
may have influenced Rock’s decision to choose Dr. Abdullah as her surgeon, the
undisputed facts show that Rock —an d not Essentia—selected Dr. Abdullah to perform
Rock’s surgery.
In Popovich, the supreme court explained that its context-specific rule regarding
reliance “reflects the reality that most people who go to the emergency room do not know
which medical professionals will treat them once they arrive” and “rely on the hospital to
select the professionals for them.” Id. Indeed, the supreme court observed that “a claim
might fail if the patient went to the emergency room to meet the patient’s personal
physician or arranged in advance to consult with a particular emergency room doctor.” Id.
at 898 n.21. That is very similar to what happened here. As the district court reasoned,
8
in this case, Ms. Rock had several visits with Dr. Abdullah at
the Plastic Surgery Institute and was only told that the surgery
would be in the Fargo hospital. The Court finds that this makes
the present case distinguishable from Popovich. As the
Supreme Court said in Popovich, “The second element,
‘reliance,’ focuses on the beliefs of the patients and considers
whether the patient looked to the hospital, rather than a
particular doctor, to provide care.” Here, Ms. Rock went to a
particular doctor, at his clinic, and was advised that the surgery
would be done at the hospital. That is very different from
someone who goes to a hospital and is told there which doctors
will be providing care.

Rock’s arguments regarding reliance stray from the context-specific standard set
forth in Popovich. Under that standard, the district court correctly concluded that there
was no genuine issue of material fact regarding whether Essentia selected the surgeon who
treat Rock. On this record, reasonable people could not disagree that Rock —and not
Essentia— selected Dr. Abdullah to perform Rock’s surgery. Thus, Rock’s claim that
Essentia is vicariously liable for Dr. Abdullah’s actions based on apparent authority under
the Popovich standard fails as a matter of law. We therefore affirm the district court’s grant
of summary judgment for Essentia.
Affirmed.