When Are Hospitals Liable for a Doctor's Error

October 20, 2005

By: David K. Jaffe

Traditionally, the courts have denied recovery against hospitals for the acts of independent contractor physicians. However, the modern trend is towards holding hospitals vicariously liable even for the malpractice of physicians who are independent contractors. There is a growing body of case law which imposes vicarious liability on hospitals based on theories of ostensible or apparent authority, respondeat superior, corporate negligence, and non-delegable duty.

Although there is no Connecticut Supreme Court or Appellate Court case dealing specifically with the issue of hospital liability under the theory of apparent agency, a number of superior court cases,[1] and two federal district court cases[2] have ruled that an apparent agency claim against a hospital is permitted under Connecticut law. This is in keeping with the modern trend, and other jurisdictions faced with this issue have recognized such a claim.[3] There is also a plethora of literature in the secondary sources appearing in journals throughout the country on this emerging trend.[4]

In the seminal case of LeConche v. Elligers, 1991 Conn. Super. LEXIS 1693 (July 16, 1991; Stengel, J.), the plaintiffs had alleged negligence and breach of contract against six defendants: four doctors, St. Francis Hospital and the Hartford Urology Group. In particular, the plaintiff Mary LeConche had alleged that she was admitted to St. Francis Hospital, diagnosed as having pyelonephritis, and discharged. She was readmitted one day later, diagnosed as having retrocecal appendicitis, and an appendectomy was performed. The hospital claimed that it was entitled to a summary judgment on the grounds that as a matter of law, the doctors who allegedly committed malpractice on the patients were independent contractors. The court held that if, by its actions, the hospital created a reasonable belief on the part of the patients that the doctors were in fact the hospital's employees, then the hospital could be liable under the theory of ostensible agency, apparent authority, or agency by estoppel.

Before LeConche was decided in 1991, no Connecticut court had considered the question of whether a hospital could be vicariously liable for the negligence of a staff doctor. In LeConche, the plaintiff claimed that the negligent doctor was an apparent agent of the hospital and, therefore, the hospital could be held liable for his negligence. In denying the hospital's motion for summary judgment, the court explained that the majority of jurisdictions which had considered the issue had held that a hospital may be liable under an apparent agency theory. The court's conclusion was deemed justified by the changing role of hospitals in society which has created a likelihood that patients look to the hospital for care and services, as opposed to individual physicians.

In Menzie v. Windham Community Memorial Hosp., 774 F. Supp. 91 (D. Conn. 1991; Dorsey, J), the court impliedly recognized an apparent agency claim against a hospital, although it decided that the plaintiff had failed to produce evidence of reliance, and thus summary judgment was deemed proper. The court based its holding on the fact that the plaintiff had been taken to the hospital under emergency circumstances and had not chosen the hospital or the doctor. As such, the court held that there could be no reliance by the plaintiff.

Before reaching this conclusion, however, the court noted with significance that: "The record reveals some evidence that the hospital held the doctors out as its employees. For example, allowing the doctors to wear operating room clothing provided by the hospital with the name of the hospital printed on it, referring to the Anesthesiology Associates as the hospital's 'anesthesia department,' and failing to inform plaintiff that the doctors were not employees could be considered relevant to this conclusion. However, although plaintiff might have satisfied the first part of the test for apparent agency, that question need not be decided because he has failed to satisfy the reliance requirement." Menzie, supra note 2, at 97.

In an edifying explication of this modern trend, the court in Kafrie, supra note 2, expounded as follows: "This court, along with numerous other courts, finds no reason why the doctrine of apparent agency should not apply to hold a hospital liable for the negligence of an independent contractor. ... Moreover, the modern trend is to permit the use of an apparent agency theory to hold a hospital liable for the negligence of a doctor/independent contractor where there has been a holding out of the doctor by the hospital and reasonable reliance thereon by the plaintiff. See Restatement (Second) of Agency § 267 (1994) (recognizing that the modern trend is to permit apparent agency claims against hospitals for the negligence of doctors who are independent contractors); Restatement (Second) of Torts § 429 (2000) (recognizing the same)."

The court continued its lucid analysis: "Further, the court finds several reasons for applying the doctrine of apparent agency to a hospital. No reasonable patient in the position of the plaintiff would assume anything else but that the medical staff performing the medical procedures were employees of the hospital. Indeed, a patient has the right to rely on the reputation of the hospital when she agrees to have a medical procedure performed at the hospital. As such, it is reasonable for the public to assume that a hospital to which it goes for treatment exercises medical supervision over, and is responsible for the negligence of, medical personnel providing services whether they are independent contractors or not. ... Accordingly, the court finds that Connecticut law does not preclude a plaintiff from bringing an apparent agency claim against a hospital for the alleged negligence of a doctor who is an independent contractor." Kafrie.

As background to a muddle in nomenclature, there is a significant overlap in the doctrines of apparent agency and apparent authority.[5] "Apparent agency," (sometimes called "ostensible agency") is based on the Restatement (Second) of Torts, which provides:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants. Restatement (Second) of Torts, § 429.

The two relevant factors in apparent agency are: (1) Whether the patient looks to the institution, rather than the individual physician, for care; and (2) Whether the hospital "holds out" the physician as its employee.

Apparent authority is based on Section 8 of the Restatement (Second) of Agency, which provides that "apparent authority results from a manifestation by a person that another is his agent, the manifestation being made to a third person and not, as when authority is created, to the agent." 1 Restatement (Second) of Agency, § 8, comment (a).

Apparent authority "is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him." 1 Restatement (Second) of Agency, § 27. "Either the principal must intend to cause the third person to believe that the agent is authorized to act for him, or he should realize that his conduct is likely to create such a belief." 1 Restatement (Second) of Agency, § 27, comment (a).

An oft-quoted discussion from the Connecticut Supreme Court on this term is as follows: "Apparent authority is that semblance of authority which a principal, through his own acts or inadvertence, causes or allows third persons to believe his agents possess. ... Apparent authority thus must be determined by the acts of the principal rather than by the acts of the agent. ... Furthermore, a party seeking to impose liability upon the principal must demonstrate that it acted in good faith based upon the actions or inadvertence of the principal." Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 140-41 (1983) (Internal quotations and citations omitted.). (Emphasis added.)

"There are numerous cases throughout the country which apply the doctrine of apparent authority so as to make a hospital liable for the negligence of an independent contractor. ... Connecticut has long recognized the doctrine of apparent authority. ... The doctrine of apparent authority basically holds that one who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or its servants is subject to liability for physical harm caused by the negligence of the independent contractor in supplying the services to the same extent as though the employer were supplying them itself or by its servants. ... There is no analytical reason not to extend this doctrine to the hospital situation, [and] in fact there are several good policy reasons for doing so." Francisco, supra note 1. (Emphasis added.)

"Courts in other jurisdictions have held that a hospital may be held liable for its staff physician's negligence under the theory of ostensible agency, apparent authority or agency by estoppel. 51 A.L.R. 4 th 235.[6] Courts have concluded that despite the fact that a physician holds independent contractor status with respect to a hospital, he may nevertheless be an agent with respect to the patient. ... The concept of ostensible agency and apparent authority involve questions of fact that must be addressed at trial." Custer, supra note 1. (Internal quotations and citations omitted) (Emphasis in original as to agent and independent contractor; emphasis added as to the other terms.)

"The issue of apparent authority is one of fact, requiring the trier of fact to evaluate the conduct of the parties in light of all the surrounding circumstances." Edart Truck Rental Corp. v. B. Swirsky & Co., 23 Conn. App. 137, 140 (1990) (Emphasis added.).

The discussion thus far has focused on modern trends in general as to hospital liability. However, there is a subcategory in these emerging theories which focuses specifically on emergency room care, treatment, and diagnosis. Under traditional agency law, hospitals have been, and continue to be, held liable for the negligent acts of their employees and agents working within the emergency room. Hospitals can also be held liable under breach of contract for events occurring in their emergency rooms in certain fact situations and can be liable for violating the terms of certain federal and state statutes regulating emergency care. Although, until recently, hospitals were not held liable for the acts of independent-contractor physicians who practiced within the hospital emergency room, the courts in several states have held hospitals liable under certain circumstances for the negligence of these independent contractors. See 58 A.L.R. 5 th 613, supra note 5, for additional discussion as to particular factual situations. The gist of the theories has been already addressed in this memo.

Conclusion

In the past several decades, the courts have made significant progress in adjusting to the rapidly changing health care industry. The role of the hospital has changed as significantly as any element in the industry. The recognition of the hospital as more than a building where physicians treat their patients was an important first step in properly evaluating and allocating responsibility for negligent acts of medical providers. The use of corporate liability and ostensible agency has filled the gaps left by the traditional theory of respondeat superior. Further progress needs to be made to ensure that the public is fully protected and that providers of poor quality health services remain fully liable for their services.


[1] McClelland v. Day Kimball Hosp., 2001 Conn. Super. LEXIS 366 (Feb. 2, 2001; Bishop, J.); Wilverding v. Ostrowitz, 2000 Conn. Super. LEXIS 607 (Feb. 28, 2000; Skolnick, J.); Custer v. Kurowski, 1999 Conn. Super. LEXIS 228 (Jan. 29, 1999; Hurley, J.); Francisco v. Hartford Gynecological Center, Inc., 1994 Conn. Super. LEXIS 521 (Mar. 1, 1994; Corradino, J.); Koniak v. Sawhney, 1994 Conn. Super. LEXIS 95 (Jan. 13, 1994; Rush, J.); LeConche v. Elligers, 1991 Conn. Super. LEXIS 1693 (July 16, 1991; Stengel, J.).

[2] Kafri v. Greenwich Hosp. Ass'n, 2000 U.S. Dist. LEXIS 22657 (Feb. 2