§77.1 Apparent or Ostensible Agency

The Case: Boren ex rel. Boren v. Weeks, 251 S.W.3d 426 (Tenn. 2008).

The Basic Facts: Husband of patient who died as a result of pulmonary emboli following multiple visits to a hospital emergency room sued emergency-room physician, hospital and related entities for medical malpractice. Plaintiff sought to hold hospital liable for negligence of physician, an independent contractor.

The Bottom Line:

• “We agree with and adopt the analysis derived from the Restatement (Second) of Torts § 429 that has been adopted by many of our sister states. To hold a hospital vicariously liable for the negligent or wrongful acts of an independent contractor physician, a plaintiff must show that (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. See, e.g., Sword, 714 N.E.2d at 152; Diggs, 628 S.E.2d at 862; Simmons, 533 S.E.2d at 322.” 251 S.W.3d at 436.

• “As discussed in Methodist Hosp. and Sword, ‘[a] hospital generally will be able to avoid liability by providing meaningful written notice to the patient, acknowledged at the time of admission.’ Sword, 714 N.E.2d at 152; see Methodist Hosp., 844 S.W.2d at 647. Thus the issue often becomes, as it does here, what constitutes ‘meaningful’ notice. The court in Sword recognized that ‘[u]nder some circumstances, such as in the case of a medical emergency, ... written notice may not suffice if the patient had an inadequate opportunity to make an informed choice.’ 714 N.E.2d at 152.” Id.

• “Generally, posting a conspicuous sign in the admissions area that the emergency room physicians are not hospital employees and having the patientsign an acknowledgment to this effect would preclude a claim of apparent authority. However, since there was testimony that a witness present that day did not recall seeing any such signs in the admissions area, and there was no testimony that either [plaintiff] or his wife saw such, some evidence would indicate that no such sign was posted or if so, it was not conspicuous. The acknowledgment in the admitting form was one of thirteen paragraphs in a two-page document signed by [plaintiff's] wife, and nothing indicates that the hospital called attention to the acknowledgment. Under these circumstances and evidence, we cannot hold that the hospital as a matter of law sufficiently notified [plaintiff] that Dr. Binion was not its employee.” (Citing Cooper v. Binion, 266 Ga. App. 709, 598 S.E.2d 6, 11-12 (internal citations omitted) (emphasis added).” Id. at 437.

• “Just as with the court in Cooper, we are unable to hold in this case that the hospital, as a matter of law, sufficiently notified Mr. and Mrs. Boren that Dr. Weeks was not its employee. The acknowledgment in the consent form was found in the second half of one paragraph of a three-page form initialed and signed by Mr. Boren. There is nothing in the record that indicates that the hospital called attention to that acknowledgment. In fact, several registration and admission hospital staff members testified that the form was completed in an electronic format, that patients and their representatives were simply asked if they consented to treatment, and hospital staff did not as a matter of practice explain that the physicians were independent contractors rather than employees or agents.” Id.

• “River Park offers emergency services to the public. The Borens relied on the hospital to provide emergency care instead of relying on any particular physician. They accepted the services of the emergency room physicians with the belief that those physicians were employees of the hospital. While the hospital included a disclaimer in the consent form, we cannot say as a matter of law that the disclaimer provided the Borens with adequate notice under the circumstances.” Id.

Other Sources of Note: Dewald v. HCA Health Services of Tennessee, No. M2006-02369-COA-R9-CV, 2007 WL 1711679 (Tenn. Ct. App. June 12, 2007) (court has detailed discussion of what evidence is necessary to meet burden).

Recent Cases: Dewald v. HCA Health Services of Tennessee , 251 S.W.3d 423 (Tenn. 2008) (reversing court of appeals' grant of summary judgment and remanding to trial court for consideration of hospital's summary judgment motion consistent with standard adopted in Boren); Boren v. Weeks, 251 S.W.3d 426 (Tenn. 2008) (reversing summary judgment finding genuine issues of material fact as to whether hospital may be held vicariously liable under apparent agency theory and as to whether hospital provided patient with adequate notice that emergency room physicians were independent contractors rather than employees; adopting analysis derived from § 429 of [RESTATEMENT (SECOND) OF TORTS] for determination of when hospitals may be held vicariously liable for negligence of independently contracted physicians); Thomas ex rel. Thomas v. Oldfield, No. M2007-01693-COA-R3-CV, 2008 WL 2278512 (Tenn. Ct. App. June 2, 2008) (finding material facts in dispute concerning: whether hospital held itself out to the public as providing medical services; whether plaintiff looked to hospital rather than individual physician to perform services; whether patient accepted services in the reasonable belief that services were provided by the hospital or hospital employee; and, if so, whether hospital provided meaningful notice to plaintiff at time of admission that the ER physician was not its agent, and remanding on the issue of apparent agency).

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