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PA: Discharge Form Refers Patient to Doctor: Hospital Liable under `Ostensible Agency' Doctrine?

CASE FACTS: On March 15, 1997, Zoraida Nazario injured her right wrist in a roller skating accident. She was admitted to the emergency room at Delaware Valley Medical Center (DVMC), where she was seen by Drs. Edward Carroll and Jules Yavil. X-rays taken by Dr. Yavil revealed a comminuted fracture of the distal radius. Dr. Carroll performed closed reduction and casting of the wrist. The hospital referred the patient to Dr. Bernard Amster and his group, Orthopedic Associates, for follow-up care. The patient sued Drs. Carroll, Yavil, Amster, and Dr. Amster's group, Orthopedic Associates in federal court. The patient alleged that Dr. Amster and his group were negligent for allowing the fracture to heal improperly. The patient alleged that DVMC was liable for the professional negligence of Dr. Amster and his group under the doctrine of "ostensible agency." The patient alleged that under Pennsylvania law, which governed, the hospital may be held responsible for the torts of its independent contractors. The hospital moved for summary judgment.

COURT'S OPINION: The United States District Court for the Eastern District of Pennsylvania granted the hospital's motion for summary judgment. The court held, inter alia, that an ostensible agency requires that (1) the patient look to the hospital for care, rather than the individual physician, and (2) the hospital "held out" the physician to be its employee. The court noted that the hospital, while not disputing that the plaintiff looked to it for her initial care, contended that it did not hold out Dr. Amster and his group as its employees. The court noted that a "holding out" occurs "when the hospital acts or omits to act in some way which leads a patient to a reasonable belief that he or she is being teated by the hospital or one of its employees." The court concluded that under the circumstances in this case, the "Emergency Department Discharge Instructions" form given to the patient by DVMC on the day of the accident necessitated the denial of summary judgment. The court noted that the form under the DVMC's name and address specifically directed the patient to "follow-up in the office of Dr. Amster, a specialist in orthopedics by calling [his telephone number] at 9 am [sic] tomorrow or Monday for an appointment as soon as possible." This did not suggest that Dr. Amster was an independent provider or that it was for the patient to decide on the choice of an orthopedist. A fact-finder could reasonably infer that Dr. Amster was DVMC's employee, operating under its control, and that consulting with him was a requisite part of the hospital's course of treatment. Nazario v. Carroll, 2000 WL 1659970 A2d. -PA
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Article Details
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Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Article Type:Brief Article
Geographic Code:1USA
Date:Nov 1, 2000
Previous Article:PA: Patient's Attorney Settles for $100,000: $1,500,000 Jury Verdict - Legal Malpractice Suit.
Next Article:Did Agitation Justify Cancellation of Surgery & Treatment?

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