Two recent cases, one in Florida and the other in New York, allowed patients to pursue claims against hospitals for the alleged medical malpractice of independent physicians who provided services at the hospitals. In Roessler v. Novak and Malcolm v. Mount Vernon Hospital, the courts held that hospitals may be liable, not only for the acts of physicians who are employees of the hospital, but also for the acts of physicians who are independent contractors.
A. Roessler v. Novak
Roessler v. Novak involved a patient who presented at the emergency department of a Sarasota County, Florida hospital. He was diagnosed as suffering from pneumonia and a perforated viscus.
The radiologist interpreting Mr. Roessler's abdominal CAT scans agreed with the diagnosis of a perforated viscus, and Mr. Roessler was scheduled for surgery. Although he survived the surgery, Mr. Roessler developed complications from abdominal abscesses that necessitated a two and a half month hospital stay. Mr. Roessler brought suit against the hospital for medical malpractice.
The radiologist was not an employee of the hospital. He was instead an independent contractor who performed services through a contract with the hospital. Under traditional liability theories, a hospital (called the principal) is usually liable for the actions of its employees (called agents), but a hospital is not usually liable for the actions of independent contractors.
However, the court in Roessler held that the Florida hospital could be held liable for the radiologist's actions through an "apparent agency" theory, if the otherwise independent contractor "appeared" to the public as the hospital's agent.
B. Malcolm v. Mount Vernon Hospital
In a similar case, Malcolm v. Mount Vernon Hospital, a New York appellate court also held that a hospital could be liable for the acts of its independent contractor. Mr. Malcolm went to his primary care physician, Dr. Edwards, complaining of a persistent cough, chills, and difficulty breathing. Dr. Edwards sent him to the emergency department of Mount Vernon Hospital, where he was admitted for pneumonia. Dr. Edwards asked the staff at Mount Vernon to page Dr. Lee, an independent contractor cardiologist, to examine Mr. Malcolm.
Dr. Lee examined Mr. Malcolm and diagnosed him with congestive cardiomyopathy. He prescribed a number of medications. Four days after being examined by Dr. Lee, Mr. Malcolm suffered a stroke. A neurologist consulted by Dr. Edwards opined that a stroke in a 46-year old man with no high blood pressure was most likely caused by a blood clot breaking off in the heart. Although Dr. Lee had prescribed medication for congestive cardiomyopathy, he did not prescribe an anticoagulant that might have prevented Mr. Malcolm's stroke.
Mr. Malcolm sued Dr. Lee, Dr. Edwards and Mount Vernon for medical malpractice, alleging that the failure to prescribe anticoagulants led directly to his stroke. Just as in Roessler v. Novak, the hospital claimed that it could not be held liable for the acts of an independent contractor.
This argument was rejected, however, and the appellate court determined that the hospital could be held liable on a theory of "agency by estoppel," which is similar to the apparent agency theory used in Roessler. Under this estoppel theory, a hospital may be held liable for the acts of an independent physician if the physician was provided by the hospital or otherwise acting on the hospital's behalf, and the patient reasonably believed that the physician was acting at the hospital's behest.
It should be noted that Maryland recognizes both "apparent agency" and "agency by estoppel." In fact, Maryland courts have not only held that the two theories are essentially the same, but Maryland courts have also applied the theories to Maryland hospitals.
Accordingly, these two recent decisions cast increased doubt on a hospital's ability to avoid liability for the actions of independent contractors working at the hospital. Because the nature of the hospital setting is such that independent contractor physicians often appear to be working as employees of the hospital, agency theories such as the ones used in these two cases may often apply.
Moreover, cases like Roessler and Malcolm may very well lead to a spate of new signs and disclaimers appearing at hospitals around the country, making it clear to patients that certain doctors are, in fact, independent practitioners, and not the hospital's agents. Whether such signs and disclaimers would be effective to save hospitals from liability is, however, an unanswered question.