Mid-Atlantic Health Law TOPICS

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Apparent Agency

In July 2022, Maryland’s highest appellate court issued a decision in Williams v. Dimensions Health Corporation, dealing with a hospital’s liability for the negligence of an independent contractor treating emergencies at the hospital.

The Doctrine

Generally, a principal is liable for the negligence of its agents. More specifically, an employer is responsible for the negligence of its employees, but generally not responsible for the negligence of its independent contractors.

However, an employer may be liable for the negligence of its independent contractors under the theory of “apparent agency,” and that doctrine depends on the perspective of the injured party.

To establish an apparent agency relationship in a health care setting, Maryland courts look at three elements: (1) any representations, or failures to correct any presumptions, that give the appearance of an agency relationship; (2) whether the patient subjectively believed that there was an agency relationship and whether he or she relied on that belief in seeking the provider’s services; and (3) whether the patient’s belief and reliance were reasonable.

The Case

In Williams, the patient was seriously injured in a car accident. In accordance with Maryland Institute for Emergency Medical Services Systems (MIEMSS) and the trauma and emergency medical system (EMS) under MIEMSS, EMS personnel transported the patient to the hospital.

Although it was not the closest hospital, it was the closest hospital with a Level II Trauma Center designation under MIEMSS, meaning it had to have a trauma surgeon available in the hospital and an orthopedic surgeon on-call at all times, among other criteria.

The patient was conscious but in extreme distress and incoherent upon arrival at the hospital. An unsigned consent form consisting of 25 “densely worded paragraphs” in “8-point type” was presented at trial. It contained language stating that emergency room personnel were not employees of the hospital but did not otherwise disclaim the hospital’s liability for provider negligence.  

The patient underwent emergency treatment by the hospital’s on-call orthopedic surgeon, who also happened to be the Chief of Orthopedic Surgery at the hospital and had surgical privileges there. As a result of the patient’s injuries and ultimately determined negligent emergency treatment by the surgeon in the emergency room, both of the patient’s legs were amputated above the knee.  

At the trial, the patient testified that he had no choice as to which hospital he was taken or which physicians treated him, and that he had never seen the consent form. EMS personnel testified that they took the patient to the hospital based on his injuries because it was the closest one with a trauma center.  
The jury at the trial court found that the orthopedic surgeon had violated the standard of care, that his negligence was the cause of the patient’s injuries, and that the orthopedic surgeon was an agent of the hospital.

The Holding

Maryland’s highest appellate court determined that the hospital should be held liable for the negligence of the surgeon, who happened to be an independent contractor, under the theory of apparent agency. The court found that, by virtue of its designation by MIEMSS as a Level II trauma center, the hospital “held out and at least created the impression” that the orthopedic surgeon was its agent and that impression was reinforced by his status as the Chief of Orthopedic Surgery at the hospital.

The court stated that “the patient, or person acting for the patient, relies on the facility’s representation that its personnel will provide the required treatment as that person has no time either to choose among individual physicians or to make fine distinctions on their precise contractual relationship with the facility.”   Here, it was the EMS personnel who acted on behalf of the patient and made the decision as to which facility the patient was taken. 

Importantly, in examining the reasonableness of the patient’s belief, the court stated that this “often involves a discussion whether the hospital gave meaningful notice that emergency room staff were independent contractors and whether such notice could ever be meaningful in this context.”  

The hospital argued that the court’s holding would impose strict liability on hospitals for independent contractors, especially in the emergency room context. This concern was echoed in a dissent written by Chief Judge Getty and joined by Judge Biran, but the majority dismissed the concern by noting that an “emergency room physician must have been negligent before any vicarious liability can attach.”

Moving forward, it would appear that clear signage, well-written and bold consents, and the severity of the situation will go a long way in determining an entity’s liability for the negligence of its independent contractors.

Tonya Foley
410-576-4238 • tfoley@gfrlaw.com

A version of the article was published by The Daily Record on July 31, 2023


December 30, 2022




Foley, Tonya R.
Rosen, Barry F.


Health Care