They’d All Go Down Together

A Hospital’s Vicarious Liability For Its Health Care Provider’s Negligence

By Ron Perey, Perey Law Group, PLLC, Seattle Washington

Hospitals routinely appoint health care providers who are not formal “employees” to care for patients. Often the law requires the hospital to offer certain services to the public, such as anesthesiology, radiology, and emergency care. But if the patient is injured and makes a claim against the hospital, a common response is that the provider was not a hospital employee. As a result of developments in Washington and nationwide in the doctrine of vicarious liability or apparent agency, this has become a hollow defense indeed.
Benton County Superior Court holds hospital vicariously liable, as a matter of law, for a non-employee provider’s negligence. On August 22, 2003, Judge Craig Matheson of the Benton County Superior Court granted plaintiffs’ motion for summary judgment holding Kadlec Medical Center in Richland, Washington vicariously liable for the negligence of its anesthesiologist, in Kimberly Jones, Calvin and Gloria Jones, & Christopher Mirisciotta v. Kadlec Medical Center & Robert Lee Berry, M.D., Case No. 03-2-00048-2. Plaintiffs Jones, Mirisciotta, and Kim’s three children are represented by Ron Perey and Jane Morrow of the Law Office of Ron Perey. This case is scheduled for trial on March 29, 2004, if it does not settle during mediation in October 2003.

In a different case against Kadlec Medical Center for the negligence of its emergency room physician, on September 19, 2003, Judge Matheson granted a similar cross-motion for summary judgment in favor of plaintiffs. In that case, Alvin & Shirley Nall v. Kadlec Medical Center, Diane Rimple, et al., No. 02-2-00877-9, the injured patient and his wife are represented by Brian Putra of Peterson Young Putra in Seattle, Washington.

The facts in the Jones case are these: On November 11, 2002, Kimberly Jones, a 30-year-old African-American female, presented to Kadlec Medical Center in Richland, Washington, for labor and delivery of her third child. During labor, an epidural was placed without difficulty or complications. The delivery was uneventful, and baby KaeDence was born at 6:05 a.m. on November 12, 2002. Kim then agreed to a tubal ligation, to be completed by her OB/Gyn later that afternoon. A tubal ligation is a simple, common surgery that takes 10-15 minutes to complete. Anesthesia was performed by anesthesiologist Dr. Robert Lee Berry, working temporarily at Kadlec, technically employed by a physician staffing service (an independent contractor of the hospital).

After the tubal ligation, sometime between 3:35 p.m. and 3:41 p.m., Kim suffered a cardiopulmonary arrest such that she became unresponsive, without pulse or respirations. Dr. Berry apparently noted her condition at 3:41 p.m. and called a CODE to summon other hospital personnel to assist with resuscitative measures. Tragically, as a result of the cardiac arrest and oxygen deprivation, Kim Jones suffered a massive anoxic brain injury. Kim is now severely and permanently brain damaged and will live the rest of her life completely dependent, requiring 24-hour care.

Staci Deranleau, another patient at Kadlec Medical Center, underwent the same 10-minute tubal ligation procedure immediately before Kim Jones’ surgery on November 12, 2002, with anesthesia also performed by Dr. Berry. Staci Deranleau had problems awakening from the anesthesia. Neither Kim Jones nor Staci Deranleau signed a consent form for anesthesia. They signed general consent forms for their labor and delivery, but the general consent forms submitted by Kadlec are silent as to whether the anesthesiologist or other providers are hospital employees, agents, or independent contractors.

Kadlec, in response to plaintiffs Jones’s motion for summary judgment, submitted absolutely no proof that Kim Jones or Staci Deranleau had any choice about the anesthesiologist selected by Kadlec to perform anesthesia at their tubal ligation procedures. Kadlec submitted absolutely no proof that it ever informed Kim Jones, her life partner and fiancé, Chris Mirisciotta, Staci Deranleau, or any other patient at Kadlec that anesthesiologists working there, including Dr. Berry, were not Kadlec employees or agents. This did not prevent Kadlec from vigorously arguing against summary judgment, primarily on the basis that the question of apparent agency is always a question of fact for the jury and cannot be decided by the court as a matter of law.

Meanwhile, evidence gathered during discovery shows that Kadlec knew or should have known of Dr. Berry’s diversion of drugs (mainly Demerol) from his patients before Kim Jones’s injury, as well as after. Despite many missed opportunities to intervene and stop Dr. Berry, Kadlec management did not get involved in monitoring him until after Kim Jones was permanently and severely injured. Two days after Kim’s injury, management confronted Dr. Berry, obtained his signed confession that he had diverted drugs from patients, and gave him the option of seeking treatment for substance abuse, which he then did. Dr. Berry disappeared from the State of Washington and plaintiffs were unable to locate him until he obtained representation in the case, several weeks after Kim’s injury. Dr. Berry is now living in his hometown of Madisonville, Louisiana. No action has been taken against Dr. Berry by the hospital, the Washington Department of Health Medical Quality Assurance Commission, or state or federal law enforcement authorities.

The law has evolved to hold hospitals vicariously liable for providers they hold out to the public. Since 1978, Washington law has held that a business entity such as a hospital is liable for the negligent acts of a physician when the hospital held the physician out as its apparent agent, regardless of how the physician was compensated. Adamski v. Tacoma General Hospital, 20 Wn. App. 98, 111-12, 579 P.2d 970, 974 (1978); Pedroza v. Bryant, 101 Wn.2d 226, 230, 677 P.2d 166 (1984); see also Adcox v. Children’s Orthopedic Hosp. & Medical Center, 123 Wn.2d 15, 36-37, 864 P.2d 921 (1993). The Adamski court recognized two bases for establishing an agency relationship through which a hospital could be vicariously liable for its provider’s negligence, whether or not the provider is an independent contractor: (1) the court developed factors for determining whether the hospital and provider “enjoy such a ‘significant relationship’ that the rule of respondeat superior ought to apply”, Adamski, 20 Wn. App. at 108; and (2) the court adopted the rule from the Restatement (Second) of Agency for ostensible agents, that is, providers whom the hospital holds out to the public as offering medical care.

Adamski has been cited around the United States as a leading authority on this legal issue. Twenty-four years later, the May 2002 Washington Pattern Instruction on vicarious liability provided guidelines on vicarious liability based on the same rules.

Kadlec could not disprove any of the Adamski factors. Kim Jones sought treatment from Kadlec. She had never heard of Dr. Berry and Kadlec offered her no choice of anesthesiologists, but rather, appointed Dr. Berry to care for her. Anesthesia was an integral part of the hospital’s operation. Kadlec provided drugs and supplies utilized by Dr. Berry and billed Kim Jones afterward for anesthesia and the anesthesiologist’s fees. Dr. Berry was acting in the course and scope of his employment or agency and under his authority as a member of the medical staff at Kadlec. There is no evidence that Kim was advised to the contrary. And all these factors were also true for Kim’s partner, Chris Mirisciotta. Adamski, 20 Wn. App. at 109, 115.

The California Court of Appeals has joined the “majority of courts throughout the nation” in recognizing the reality of hospital-physician relationships by presuming the hospital is vicariously liable for the negligence of physicians practicing there. Mejia v. Community Hospital of San Bernardino, 122 Cal. Rptr. 2d 233, 99 Cal. App. 4th 1448, 1457, review denied (2002) (see also previous cases cited therein). In Mejia, the court held that the elements of ostensible agency are satisfied whenever a patient seeks care at a hospital: “Because it is commonly believed that hospitals are the actual providers of care, ostensible agency can be readily inferred whenever someone seeks treatment at a hospital.” Mejia, 99 Cal. App. 4th at 1456. “[T]he overwhelming majority of jurisdictions employed ostensible or apparent agency to impose liability on hospitals for the negligence of independent contractor physicians.” Mejia, 99 Cal. App. 4th at 1452-53.

Mejia involved medical malpractice by a radiologist at the hospital, who was employed by a radiology group. The court boiled the elements of ostensible agency down to two: (1) conduct by the hospital that would cause a reasonable person to believe the physician was an agent of the hospital, and (2) plaintiff’s reliance on that apparent agency relationship. These elements are in accord with Adamski and WPI 105.02.03. The first element of ostensible agency is satisfied when the hospital holds itself out to the public as a provider of care; thus, “it is not necessary to show an express representation by the hospital.” Mejia, 99 Cal. App. 4th at 1454 (citing Adamski). “Instead, a hospital is generally deemed to have held itself out as the provider of care, unless it gave the patient contrary notice.” Mejia, 99 Cal. App. 4th at 1454 (emphasis added). The court’s ruling on this first element amounts to judicial notice that virtually all patients believe the doctors treating them at a hospital are hospital employees.

Mejia further held that the second element, reliance, “is established when the plaintiff “looks to” the hospital for services, rather than to an individual physician.” Mejia, 99 Cal. App. 4th at1454. “Effectively, all a patient needs to show is that he or she sought treatment at the hospital.” Mejia, 99 Cal. App. 4th at 1458. Once plaintiffs show this, “courts presume reliance, absent evidence that the plaintiff knew or should have known the physician was not an agent of the hospital.” Mejia, 99 Cal. App. 4th at 1454.

The court also rejected arguments similar to those made by Kadlec in the Jones proceedings:

  • In response to the argument that the injured person could not have understood the hospital to have held the defendant physician out as its agent, Mejia commented, “patients cannot be expected to inquire into the employment status of physicians they never met.” Mejia, 99 Cal. App. 4th at 1460.
  • In response to the argument that the attending physician, not the hospital, could have selected and controlled the defendant physician, the court held, “This fact is obviously irrelevant. As explained above, ostensible agency is based on appearances. Thus, the fact that a hospital actually contracts with an intermediary to hire and schedule physicians is only relevant if the patient had some reason to know about that arrangement.” Mejia, 99 Cal. App. 4th at 1460.
  • In response to the argument that the injured person went to the hospital primarily because of reasons other than its reputation, the court stated, “this argument misconstrues the nature of the reliance inquiry.” Mejia, 99 Cal. App. 4th at 1460.

Other authorities confirm what Mejia so clearly holds. “The public, in looking to the hospital to provide such care, is unaware of and unconcerned with the technical complexities and nuances surrounding the contractual and employment arrangements between the hospital and the various medical personnel operating therein. . . . Public policy dictates that the public has every right to assume and expect that the hospital is the medical provider it purports to be.” McGill v. Newark Surgery Center, 113 Ohio Misc. 2d 21, 756 N.E.2d 762, 773 (2001); see also, e.g., Henderson v. Marx, 251 A.D.2d 988, 674 N.Y.S.2d 247 (1998); Dias v. Brigham Medical Associates, Inc., 438 Mass. 317, 780 N.E.2d 447 (2002) (retreating from “right of control” test traditionally used for respondeat superior); David L. Reed, Vicarious Liability Under Doctrine Of Ostensible Or Apparent Agency, 6 Am. Jur. Proof Of Facts 3d 457, § 1, n.83 (2002) (and cases cited therein).

In view of Mejia’s refinements to Adamski, it seems appropriate for the Washington Civil Rules Committee to consider revising WPI 105.02.03 to reflect a rebuttable presumption that a hospital is the provider of health care to a patient, absent evidence that the plaintiff/patient knew or should have known the individual health care provider was not an agent of the hospital.

Plaintiffs should also argue the hospital has a nondelegable duty. Plaintiffs have advanced the argument that the hospital has a nondelegable duty to provide competent medical care in emergency rooms, anesthesiology, or any care they are required by law or regulation to offer patients. See, e.g., WACs cited in note 8. The concept of nondelegable duty has the advantage of cutting through the technical difficulties of apparent agency (such as “actual notice” to the patient; and whether the provider was acting within the scope of his authority, as in the Jones case where the anesthesiologist was using and diverting drugs while working).

Adamski referred to but did not rule on this concept of a hospital’s nondelegable duty to the public, as derived from state law. Adamski, 20 Wn. App. at 111 n.5. Supporting this theory, the doctrine of hospital corporate negligence holds that the hospital has a nondelegable duty of care directly to its patients, including the duty to employ competent personnel and to adequately supervise them. Douglas v. Freeman, 117 Wn.2d 242, 248, 814 P.2d 1160 (1991); Pedroza v. Bryant, 101 Wn.2d 226, 667 P.2d 166 (1984); Schoening v. Grays Harbor Cmty. Hosp., 40 Wn. App. 331, 334, 698 P.2d 593 (1985).

The Florida District Court of Appeal recently concluded that a hospital could not delegate its duty of care to an independent contractor heart-lung machine operator (perfusionist) whose negligence injured an infant during open-heart surgery. Shands Teaching Hospital & Clinic, Inc. v. Juliana, 2003 WL 22023474, (Fla. App., Aug. 29, 2003). The plaintiff parents in Shands argued that the hospital had a nondelegable duty because (1) because it had a contractual obligation it could not extinguish by subcontracting with the perfusionist’s employer; (2) providing perfusion services is inherently dangerous (see Restatement (Second) of Torts § 416 (1965)); and (3) the hospital was acting pursuant to a state license under regulations that required it to furnish perfusionists’ services. The trial court agreed with the contractual argument, holding:

The duty could not be delegated since the service was contracted for. The hospital provided the services of the perfusionist. If the hospital had wished for the patient to obtain his own perfusionist it might have been possible to advise the patient that this was his responsibility. This certainly was not done. The fact that the hospital chose to retain the services of the perfusionist as an independent contractor rather than an employee is immaterial in the relationship between the hospital and the patient.
…The duty [to] the Plaintiff could not be unilaterally delegated by the hospital without some very specific notice to the Plaintiff….

Shands, 2003 WL 22023474, at 4 (affirming and quoting trial court). Similarly, in Mejia, the court noted:

[Some] courts have commented that the burden of proving ostensible agency in the hospital context has been so relaxed that it amounts to a nondelegable duty. . . . The West Virginia Supreme Court even went so far as to conclude that a hospital is estopped to deny an agency relationship whenever it makes emergency room services available to the public. . . . This per se inference of ostensible agency actually follows logically from the evolution of the modern hospital described above[.]

Mejia, 99 Cal. App. 4th at 1455-56 (citations omitted); see also Osborn v. Adams, 346 S.C. 4, 553 S.E.2d 319, 321 (2001) (“a hospital owes a common law nondelegable duty to render competent service to its emergency room patients such that it may not avoid liability for the negligent acts of emergency room physicians hired as independent contractors”); Mduba v. Benedictine Hospital, 52 A.D.2d 450, 453, 384 N.Y.S.2d 527 (1976) (hospital has nondelegable duty when physician is independent contractor under “secret limitations as are contained in a private contract between the hospital and the doctor”).

Benton County Superior Court Judge Matheson found the theory of nondelegable duty attractive in the emergency care case against Kadlec, but declined to base his ruling on it. Nevertheless, plaintiffs should continue to make the non-delegable duty argument, because it is a simple and straightforward rule of law reflecting the public perception of hospital care, and it is good public policy.