Legal Review and Commentary
Unless told otherwise, patients can assume that physicians work for the hospital
By Blake J. Delaney, Esq., Buchanan Ingersoll & Rooney PC, Tampa, FL
News: After weeks of neck pains, a woman finally went to the emergency department (ED) and was diagnosed by an on-call radiologist as suffering from congenital fusion. Although nauseated, the woman was discharged and sent home to bed. The next morning, she woke up paralyzed. She went to another hospital, where she learned that her neck was broken. The woman brought suit against the hospital, ED physician, and radiologist. The trial court dismissed the case against the hospital, found the radiologist negligent, and determined that the ED physician was without fault. On appeal, the radiologist was found to be the ostensible agent of the hospital, meaning the hospital could be found liable for his actions.
Background: Following a couple of weeks of pain and stiffness after hearing something pop in her neck, a woman went to the ED. She had been taking aspirin to control the pain, but she became more concerned after awaking to find that the pain was more severe and her head was twisted to one side.
An ED physician examined her and prescribed hydrocodone and aspirin for the pain and a tranquilizer to relax the muscles. The doctor also ordered X-rays, at least one of which was sent for review by the on-call radiologist. The radiologist reported that he saw a congenital fusion but nothing else. The ED physician told the patient that she had a twisted neck, but that she was otherwise alright. The doctor subsequently discharged the woman from the hospital.
When a nurse attempted to escort the patient out of the hospital, she became extremely nauseated from the medication. The woman vomited several times before leaving the hospital. Ultimately, the woman's family had to lift her head out of the toilet and put her in a wheelchair so that she could leave the hospital. The family then had to lift the woman into the car because she was unable to get in herself.
Upon returning home, the woman fell asleep. When she awoke the next morning, she felt the pain in her neck and felt numb throughout her body. She was unable to move her arms or legs. An ambulance took her to another hospital, where the medical staff determined that the woman had a broken neck and was paralyzed.
The woman sued the hospital, ED doctor, and his medical group, and the radiologist and his medical group. Both the medical groups were under contract with the hospital to provide ED and radiology services, respectively. The trial court granted a nonsuit for the hospital in which it found that the hospital could not be vicariously liable for any negligence committed by the radiologist because the radiologist was an independent contractor, not an agent, of the hospital. Subsequently, the jury found that the radiologist and his group were negligent, but it determined that the ED physician and his group were not.
The plaintiff appealed the trial court's nonsuit for the hospital decision and her legal representatives argued that she had put forth sufficient evidence to find that the radiologist was the ostensible agent of the hospital. An ostensible agent can bind a principal even though actual authority is lacking, if the principal causes, either intentionally or through lack of due care, a third party to believe that the ostensible agent is acting on behalf of the principal. The plaintiff's representatives argued that the hospital had led her to believe that the radiologist was the hospital's agent such that the jury could have found the hospital vicariously liable for the radiologist's negligence.
The hospital's legal representatives responded that no reasonable jury could find that the radiologist was an agent, whether actual or ostensible, of the hospital. The hospital representatives pointed out that the woman never even knew of the radiologist's involvement in her case, as the woman dealt solely with the ED physician and never communicated with the radiologist. The hospital also contended that the radiologist was scheduled to be at the hospital by his medical group employer, not by the hospital. Finally, the hospital argued that the woman could not have relied on the hospital's reputation for service because the woman merely selected the hospital that happened to be closest to her home.
Reversing the trial court's decision, the appellate court found that the radiologist was an ostensible agent of the hospital. It did not matter that the woman never knew of the radiologist's involvement in her case because emergency patients cannot be expected to inquire as to whether treating physicians are independent contractors or agents, nor can patients be expected to inquire into the employment status of physicians they never meet. Also irrelevant was the fact that the radiologist was scheduled to be at the hospital by his medical group employer rather than by the hospital unless the woman had some reason to know about the hospital's arrangements with the radiologist's employer. Finally, the court disagreed that the woman's reliance on the hospital's reputation was important; instead, the issue should be whether the patient relied on the hospital's representation that the negligent radiologist was its agent.
As a general rule, the court stated, hospitals are deemed to have held themselves out as the provider of services unless they have given the patient notice to the contrary. The court of appeal concluded that without evidence that the plaintiff should have known that the radiologist was not an agent of the hospital, the plaintiff had alleged sufficient evidence to get to the jury merely by claiming that she sought treatment at the hospital.
What this means to you: The issue raised in this factual scenario is of vital importance to all hospitals and health care facilities where independent contractors provide patients with medical treatment.
"Who wouldn't think that a physician providing treatment within the four walls of a hospital isn't working for the hospital?" asks Ellen L. Barton, JD, CPCU, a risk management consultant in Phoenix, MD. Because this conclusion is entirely reasonable, Barton thinks that the hospital has the burden to inform patients of various relationships in a manner and at a time that is meaningful and can be clearly understood.
Barton suggests that hospitals should take several steps to reduce their risk of vicarious liability. First, signs should be posted in key areas of the Emergency Department — Registration, Triage, and Treatment Rooms — indicating that "Physician Services are provided by [name of physician group] and [radiology group] and will be billed separately." Second, the hospital should revise all Admission for Treatment and Consent to Treatment forms to include a statement in bolded or large-sized or color font indicating that physicians are not employees or agents of the hospital. Third, the hospital should forbid physicians from wearing lab coats or ID badges that have the name of the hospital embroidered or stamped on them. As Barton notes, "It is a common practice for hospitals either as a matter of courtesy or PR to give physicians lab coats with the name of the facility embroidered above the physician's name. Would anyone wonder why a patient would perceive that the physician was a hospital employee?" And fourth, the facility should require physicians to introduce themselves to patients as independent contractors. For example, Barton suggests, a physician could say, "Hello, I'm Dr. Hugo Smith, I work for [name of physician firm], and we provide physician services for City Hospital."
In this case, the hospital's arguments in opposition to vicarious liability ring hollow because they miss the point about what a third party must be led to believe in order for vicarious liability to attach. Although this case appears to be one of clear liability, it also appears that the wrong party was held responsible. Barton points to this fact as emphasizing the need for hospitals to be pro-active in their notices to patients.
Reference
- California Court of Appeals, Case No. E028795.
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