Question: A patient developed severe headache and neck stiffness, which the emergency department (ED) doctor (ED-1) incorrectly diagnosed as a viral infection. The patient went home, but her condition did not improve, so her husband called the ED, where the on-call doctor (ED-2) answered some questions but did not encourage reevaluation because the ED was extremely busy at the time. The patient's condition deteriorated rapidly; she subsequently died, and autopsy revealed a massive subarachnoid bleed. Her husband sued both of the ED doctors as well as the hospital for malpractice. Neither ED-1 nor ED-2 is a hospital employee; they work as independent contractors and derive no salary or fringe benefits from the hospital. A prominent sign at the hospital entrance features these words: “Emergency Services: Physician on duty 24 hours.” Which of the following choices is correct?
A. ED-1 is not liable because he met the standard of care.
B. ED-2 is not liable because there was no doctor-patient relationship.
C. The hospital cannot be liable because it is not a person.
D. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are akin to being employees.
E. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are perceived as agents.
Answer: E. Whether ED-1 is liable will depend on whether the original medical history and physical findings were sufficient to raise the diagnosis of a subarachnoid bleed, and whether appropriate studies were undertaken. ED-1 will be judged by the standard ordinarily expected of any physician under similar circumstances. Although ED-2 did not directly examine the patient, there was a discussion with the husband, so it is likely ED-2 will be deemed to have established a doctor-patient relationship. Whether ED-2 breached the standard of care by failing to ask the patient to immediately return to the hospital will depend on the questions asked and the answers received. However, a busy ED is insufficient reason to dissuade a patient from being reevaluated if customary standards so dictate.
Any entity, not only a person, can be held liable for civil damages. Hospitals can therefore be asked to pay damages for any number of reasons, such as direct negligence, premise liability, etc. Vicarious liability is indirect legal liability, typically arising from an employer-employee relationship, which is not the situation here. However, vicarious liability can also arise from a principal-agent relationship, and under some circumstances, an independent contractor can be deemed to be an agent. The plaintiff will likely plead this theory by casting the ED physicians as ostensible agents; in other words, the hospital has held itself out to the public as a provider of care, as evidenced by the hospital sign that ED doctors were on duty 24 hours a day.
How can hospitals be held liable for the negligent acts of its doctors and staff? Vicarious liability is a legal doctrine in which a party is held legally responsible for the negligence of another because of its relationship to the wrongdoer. Courts have generally used the employer-employee or the agency principle to hold a hospital vicariously liable for the negligence of its health care providers. Where there is an employer-employee relationship (e.g., nurses and some doctors hired by the hospital), respondeat superior is the basis for liability. Respondeat superior means “let the master answer.” The idea behind this rule is to ensure that the employer, as supervisor, will enforce the proper work standards to avoid risk of harm.
Where the negligent actor is an independent contractor rather than an employee, respondeat will not apply. An institution usually does not exercise substantial control over the actions of independent contractors. Most doctors who work in private hospitals are independent contractors, as they do not draw a hospital salary, nor are their work hours and work duties controlled or defined by the hospital. Having physicians as independent contractors instead of employees thus inoculates the hospital from vicarious liability.
However, depending on the facts, some courts have used an underlying agency relationship to impute liability to the hospital (Sword v. NKC Hospitals, Inc., 714 N.E. 2d 142, Ind., 1999). Agency may be established if there is some degree of control, even if minimal, that is exerted on the doctor, especially where patients are not informed that their treating doctors are independent contractors. The relationship may be construed as an apparent or ostensible agency, where there is some representation that the doctor works for the hospital. Alternatively, when the patient relies on the hospital in seeking treatment, it is called agency by estoppel. Finally, courts have occasionally used the legal doctrine of nondelegable duty to find a hospital liable, holding that the services provided, as in the radiology or emergency departments, are a hospital's “inherent function.”