Archive for the ‘Apparent Agency’ Category

Proving Doctors are Apparent Agents of the Hospital

posted on April 12th, 2011 by clint
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You will encounter a medical malpractice claim where the patient was injured by a doctor’s negligence while in the hospital. When you read the hospital consent form that your client signed at admission, you will find a provision which states the following:

Patient understands that the physicians who provide services at this hospitals are not employees or agents of the hospital. / Patient understands that the physicians on staff are independent contractors. / Patient will look to the treating physicians for all medical treatment.

There may be a blank place where the patient can affix her initials next to these provisions. All of this begs the question of whether you can bind the hospital vicariously to the negligent conduct of its staff physicians despite the aforementioned notice. The answer to this question is “Yes.”

First, you must plead apparent agency in the complaint broadly. I always allege the following:

The Defendant hospital is liable under the doctrine of respondeat superior for any negligence of its agent physicians on staff while acting in the course and scope of their agency.

This allegation accomplishes twin goals. First, it gives the hospital notice that I am attempting to bind the hospital vicariously to the negligent actions of its staff physicians. Second, I plead broadly so that I can include unidentified physicians under the umbrella of apparent agency. All too often, you will identify for the first time in discovery that a staff hospitalist, anesthesiologist, radiologist, etc. has some liability that should be imputed to the hospital. Pleading broadly prevents the argument of unfair surprise, lack of notice, or untimely amendment, which was countenanced by the Court of Appeals in Huber v. Marlowe, 2008 WL 2199827 (Tenn. Ct. App.) and Randolph v. Meduri, 2011 WL 721474 (Tenn. Ct. App.). Don’t fall in this unfortunate trap.

You can prove apparent agency even when the patient signs a consent form, which gives notice that the physicians are independent contractors. In Boren v. Weeks, 251 S.W.3d 426 (Tenn. 2008) and its companion case Dewald v. HCA Health Serv. of Tennessee, 251 S.W.2d 423 (Tenn. 2008), the Supreme Court held that a fact issue existed as to whether the hospital held its physician out as an apparent agent despite notice of an independent contractor arrangement. The Supreme Court in Boren and Dewald adopted the Restatement test for determining whether a physician is an apparent agent of the hospital. In order to hold a hospital vicariously liable for the negligent acts of an independent contractor physician, a plaintiff must show the following elements: (1) the hospital held itself out to the public as providing medical services; (2) the plaintiff looked to the hospital rather than to the individual physician to perform those services; and (3) the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee. Boren, 251 S.W.3d at 436. Prove these elements through your client, surviving spouse, or witnesses and you will have a jury question on apparent agency to bind the hospital.

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