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 misdiagnosed 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).)