Hospital Liability 2

1. Hospital Liability #2

2. Vicarious Liability Old common law �corporate practice� prohibition means hospital cannot practice medicine or employ MDs Bc hospital cannot control MD, then No master-servant relationship (respondeat superior) No vicarious liability for MD negligence Some early cases include nurses

3. Modern view Courts increasingly exposing hospital to vicarious liability for MD employees Independent contractor MDs IF: apparent agency (common) nondelegable duty (rare)

4. MDs as Employees(Respondeat superior) Residents & interns Teaching hospital faculty (salary, etc.) VA hospital physicians CONTROL: analogy to AIRLINE PILOTS; NURSESCONTROL: analogy to AIRLINE PILOTS; NURSES

5. MDs as Employees - 2 Other MDs call selves independent contractors Examples: internist, OB/GYN, surgeons BUT courts are not bound by their characterization Courts look to substance of relat�p with H. Multifactor test: RS Agency key factor = control Historically, a problem for Plaintiffs

6. Can H �control� MDs? Courts no longer seem to insist Analogy to airline pilots, etc. experts, but still employees. Prime targets are hospital-based MDs ER group; pathologist, radiologists No office; often given exclusive contract to provide this service at the hospital See Adamski

7. Adamski Factors there? Does court insist on control? What does court emphasize instead? Adamski: hospital bills and collects and sets raates hosp. Guarantees minimum salary no private practice/ noncompete rules [H supplies equip/nurses] [any rent??] but: own insurance [some H�s pay for this] nonexclusive (could work at other Ers) skilled contract says I.C.Adamski: hospital bills and collects and sets raates hosp. Guarantees minimum salary no private practice/ noncompete rules [H supplies equip/nurses] [any rent??] but: own insurance [some H�s pay for this] nonexclusive (could work at other Ers) skilled contract says I.C.

8. �Inherent function� Court emphasizes that the ER is an �integral part of the total hospital function�). Would this apply to radiology? Surgeons? NOTE: willingness of courts to extend respondeat superior has not been tested bc Ps have done so well with next theory. INHERENT could conceivably apply to all in-house MDs, but little caselaw Adamski=one factor Beech=determinative Ps=most success with OSTENSIBLE theory: others have not gone anywhere. INHERENT could conceivably apply to all in-house MDs, but little caselaw Adamski=one factor Beech=determinative Ps=most success with OSTENSIBLE theory: others have not gone anywhere.

9. Other VL Theories for MD/IC�s 1. Nondelegable duty relies heavily on state statutes requiring an ER not applied to other MDs yet only a couple of cases 3. Ostensible agency: by far most popular NONDELEGABLE; based in part on state ER statutes, so not likely to apply to other MDs NONDELEGABLE; based in part on state ER statutes, so not likely to apply to other MDs

10. Ostensible Agency(Apparent Agency) Representation by Hospital that MD is a hospital employee Reliance by Patient RS of Agency: reliance on representation of employment RS of Tort: reliance on skill of servant TORT � 429 (Ostensible) AGENCY � 267 (Apparent)TORT � 429 (Ostensible) AGENCY � 267 (Apparent)

11. Representation of employment Traditionally, look for evidence of Hospital holding out MD as Employee. Ads: �our team of MDs is the best in town� MDs wear hospital ID badges, scrubs Emerging trend: hospital holds itself out as provider �in an emergency, think Regional� patients selects hospital; it provides the MDs; must back them up as if employees. HOLDS OUT: used to be D held Agent out as its employee subtle shift in language now--holds SELF out as provider Adamski uses both concepts @ 487HOLDS OUT: used to be D held Agent out as its employee subtle shift in language now--holds SELF out as provider Adamski uses both concepts @ 487

12. Adamski (487)=both formulations �a jury could find that the emergency room personnel were �held out� as employees of the the Hospital.� �Tacoma General held itself out as providing emergency care services to the public� Latter usage is growing

13. �Holds Itself Out� Easiest case: ER physicians hospital markets ER directly to consumers they select Hospital, not physician other HOSPITAL-BASED MDs? radiologists, anesthesiologists, pathologists MDs chosen by patient beforehand? family orthopedic surgeon; negl. Surgery at H. Care provided off premises by MD met at H Not the last 2 so far.Not the last 2 so far.

14. 2d Element: Reliance 3 definitions 1. RS Agency: detrimental reliance on representation of employment status strict interpretation: P must prove he would have gone elsewhere if aware that D was not an employee. Missouri=Porter (8th Cir.) relaxed interpretation: sufficient if services were �accepted in reasonable belief� that MD is servant. Adamski? Adamski??? Seems to be enough if P ASSUMED that D was an employee, even if not clear that he would have gone elsewhere--de facto switch to RS TORTs view.Adamski??? Seems to be enough if P ASSUMED that D was an employee, even if not clear that he would have gone elsewhere--de facto switch to RS TORTs view.

15. Reliance - 2 2. RS Tort: reliance on skill of agent always present! 3. Trend: did P �look to� hospital for care (rather than individual MD). patients selects hospital; it provides the MDs note overlap with �hold out� element Yes: ER and other hospital-based MDs independently chosen by P? LOOK TO? Likely to be present if �hold out� is present. LOOK TO? Likely to be present if �hold out� is present.

16. Recap Hornbook: liability for indep contractors if Representation of agency and Reliance (on representation or skill) Trend: hospital meets this test if �holds itself out as provider� and P �looks to hospital�, rather than MD, for care Prime target: hospital-based MDs

17. Can Hospital Avoid? Eliminate misunderstanding about agency Clearly state in advertisements? Post a notice at ER? Rarely done (bad PR) Theoretically should suffice BUT I have doubts: courts have effectively created a new kind of vicarious liability for hospitals where Hospital is the provider that the customer �looks to,� not the MD [hold out/look to=vic] ER Poster =Too late? (P already relied by going there?) HOLD OUT=FREE-STANDING? (even if no representation re employment status). Esp for ER!!!! (effectively nondelegable duty) But one court did recently let a H off [where? Ala?]ER Poster =Too late? (P already relied by going there?) HOLD OUT=FREE-STANDING? (even if no representation re employment status). Esp for ER!!!! (effectively nondelegable duty) But one court did recently let a H off [where? Ala?]

18. Fair to stretch Ost.Authority? Stretch? No longer based on misrepresentation causing detrimental reliance Yet, still �estopping� Hospital to deny m-s Fair? Backdoor route to respondeat superior H selects MDs; ought to stand behind them. Like Walmart or American Airlines

19. Vicarious Liability Rationales Provides are responsible, solvent party Gives �employer� incentive to supervise and maximize quality. Employer profits from work done by its �employees�--fair to take responsibility. Applicable to Hospital-based MDs? Probably Better to be honest & debate openly.

20. Result Modest form of enterprise liability limited to hospital-based employees may be avoidable with disclaimers (?) Scholars advocate making H responsible for all care within the facility true enterprise liability courts lack a common law vehicle to get there? can�t stretch m-s or ostensible that far??

21. Recap of H Vicarious 1. Respondeat superior multifactorial test the more hospital control over MD the better for the plaintiff �inherent function� test helps in some states 2. Nondelegable duty 3. Ostensible agency: by far most successful with the courts NONDELEGABLE; based in part on state ER statutes, so not likely to apply to other MDs NONDELEGABLE; based in part on state ER statutes, so not likely to apply to other MDs

22. Consequences of Vicarious Hospital is jointly liable with MD if MD is negligent Hospital can seek indemnification from MD MD-hospital contract can alter this and decide who is supposed to buy the malpractice insurance