Whitlow v. Rideout Memorial Hospital: Court of Appeals blocks hospital’s attempts to avoid ostensible agency
Can a hospital disclaim liability for the negligence of one of its doctor’s through a sign and an admission form as a matter of law? Not a chance, said the Court of Appeals.
Normally, a hospital is liable for the negligent acts of a physician when that physician is either actually employed by the hospital or is an ostensible agent of the hospital (i.e. appears to be an employee of the hospital). (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 103.)
In a case recently decided by the Court of Appeals, the defendant hospital tried to evade ostensible agency so as to “shed its vicarious liability for the negligence of the physicians who provided services in its emergency room.” It did so by compelling patients to sign a form acknowledging its emergency room physicians are independent contractors and posting signs delivering the same information.
Based on the sign and the signed form alone, the trial court granted summary judgment in favor of the hospital, finding that the sign and boilerplate admissions form “conclusively” indicate that the plaintiff should have known her treating physician was not an agent of the hospital. The Court of Appeals, however, disagreed, appearing highly dubious of the notion that a patient in an emergency room – who is likely to be suffering of a serious ailment or impairment of some sort – would be paying attention to posted signs or carefully reading the admission form to determine the agency status of her treating physician. Based on this analysis, the Court of Appeals held that the mere existence of a sign and boilerplate language in an admission form was insufficient to conclusively disprove ostensible agency, finding that this was definitively a question of fact and reversing summary judgment accordingly.
Of further interest, it appears as though the Court of Appeals may be ready to address the issue of a non-delegable duty for emergency room services. Although it ultimately opted not to resolve the issue in its ruling, both parties were asked by the Court to brief this issue. Based on these briefs the Court looked closely at the question of whether a hospital has an absolute duty to prove competent emergency room care, such that a hospital would be vicariously liable for any treating physician working in its emergency room, whether or not she is an employee or independent contractor. It remains to be seen how California courts would rule on this issue, but based on the Court’s ruling in this case it may not need to reach this issue any time soon given how difficult it would be to convince a jury that – as in this case – an emergency room patient with a massive brain hemorrhage would somehow be competent to recognize her physician is not an agent of the hospital.
TLDR: If you want to avoid liability for the acts of an independent contractor, it is highly doubtful that a couple signs and a contract disclaimer are going to be good enough.
Dean Whitlow v. Rideout Memorial Hospital
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