News
& trends
Hospitals,
doctors may be liable for contractors' negligence
Two recent court
decisions have allowed lawsuits to go forward in which plaintiffs
claim that doctors or hospitals should be held liable for negligence
of independent contractors in their hire.
Physicians
working in hospitals are commonly independent contractors, and doctors
increasingly perform routine procedures in their private offices,
using independent-contractor nurses and physicians to supplement their
staffs. Attorneys representing patients say these contractors are
agents of the hospital or doctor providing care.
Courts
around the country are holding hospitals and doctors vicariously liable
for contractors' negligence under the theory of ostensible agency
(also called apparent agency). Under this theory, a party that allows
another to appear to be an agent or employee cannot deny that a relationship
exists after an injury takes place.
A
Pennsylvania appeals court recently upheld this theory in a case involving
botched surgery. Dr. Howard Freilich performed a colonoscopy on Mary
Parker, one of his regular patients. Robert Shaw, a nurse anesthetist
and independent contractor hired by Freilich, assisted. After Parker
was released and sent home the day of the procedure, she realized
that Shaw had left a catheter in her right forearm. She filed a negligence
suit against him and Freilich.
The
case went to trial in January 2001. After Parker had presented her
case, Freilich moved to dismiss the claim against him, arguing that
the theory of apparent agency applied only to hospitals and HMOs,
not doctors. The court agreed. The trial continued against Shaw, whom
the jury found negligent.
The
appeals court reinstated Parker's claim against Freilich and remanded
the case for a new trial.
"In
situations where the doctor performing the procedure on a patient
in his office utilizes the services of an independent contractor nurse,
it would be absurd to require such patients to be familiar with the
law of respondeat superior and so to inquire of each person who treated
him whether he is an employee of the doctor or an independent contractor,"
the court said. "Thus . . . holding doctors liable for the negligence
of independent contractor nurses under the theory of ostensible agency
is quite consistent with the rationale behind the application of this
theory to hospitals and HMOs." (Parker v. Freilich, 803 A.2d
738 (Pa. Super. Ct. 2002).)
In
another case, the California Court of Appeals ruled that a patient
who was mis diagnosed by a hospital emergency room doctor can sue
the hospital for negligence, even though the doctor was an independent
contractor. The court ruled that the ostensible-agency claim could
proceed because "there was no evidence that [the patient] should have
known that the negligent physician was not an agent of the hospital."
(Mejia v. Community Hosp. of San Bernadino, 122 Cal. Rptr.
2d 233 (Ct. App. 2002).)
The
plaintiff, Maria del Carmen Mejia, heard a pop in her neck while moving
boxes and subsequently experienced pain and stiffness for several
weeks. When severe pain woke her one night, she sought treatment at
the emergency room. The ER physician prescribed medicine for her pain
and ordered X-rays of her neck. An on-call radiologist evaluated the
X-rays and reported no injury, so the ER doctor discharged her. Both
doctors were independent contractors, not direct employees of the
hospital.
Before
leaving the hospital, Mejia became severely nauseated from the medication.
Family members had to lift her into a wheelchair to take her home.
They put her in bed, and when she woke up, she could not move her
arms or legs. She went by ambulance to another hospital, where doctors
determined that her neck was broken and she was paralyzed.
Mejia
sued the first hospital, the radiologist and his employer, and the
ER physician and his employer. After she presented her case at trial,
the court granted the hospital's motion to dismiss her claim against
it. The jury found that the radiologist and his employer were liable
but that the ER physician and his employer were not. The appeals court
reversed the dismissal of the claim against the hospital.
Thomas
Masterson of St. Petersburg, Florida, chair of ATLA's Professional
Negligence Section, said the logical basis for this liability is that
hospitals advertise their services extensively. They try to create
a positive public image, boasting of the quality of care provided
by "our doctors," he said.
"From
the patient's perspective, each doctor, nurse, therapist, or care
provider seems like part of the system that is treating" him or her,
Masterson said. "With the hospitals attempting to reap the benefits
of income when patients are treated, it seems only fair to have the
responsibility attach for improper treatment."
Masterson
pointed to an Alaska Supreme Court decision regarding a hospital's
liability for negligence of an ER doctor. "[W]e simply cannot fathom
why liability should depend upon the technical employment status of
the emergency room physician who treats the patient," the court found.
"It is the hospital's duty to provide the physician, which it may
do through any means at its disposal. The means employed, however,
will not change the fact that the hospital will be responsible for
the care rendered by physicians it has a duty to provide." (Jackson
v. Power, 743 P.2d 1376 (Alaska 1987).)
—Sara
Hoffman Jurand
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