On Wednesday, Oct. 29, 2008, a New Jersey state appellate court held that a hospital may be vicariously liable for a staff doctor whom a patient reasonably believes is providing treatment on behalf of the hospital. In Estate of Cordero v. Christ Hospital, the Superior Court of New Jersey considered the trial court's dismissal of the plaintiffs' vicarious liability claims against the hospital.
Ramona Cordero, an insulin-dependent diabetic, was treated by an anesthesiologist who was a member of a group that contracted with the hospital to provide anesthesiology services. Prior to the day of treatment, Cordero had never met the doctor who introduced himself merely as the anesthesiologist. The doctor wore no identification to disclose his affiliation with the anesthesiology group, nor did he advise Cordero that the hospital assumed no responsibility for the doctor's care. After placement of a catheter, Cordero's blood pressure and heart rate dropped. Although she was resuscitated, she suffered brain-damage, and she remained in a vegetative state until her death 3-1/2 years later.
The trial court concluded that a claim for vicarious liability could not be pursued because the plaintiffs failed to present evidence either that the hospital "actively held out" the doctor as its agent or that it misled the patient into believing that he was its agent. The appellate court disagreed, rejecting the notion that affirmative action is necessary to mislead a patient.
The court noted that while a hospital is generally immune from liability for the negligence of independent contractors, such as doctors, an exception exists where the hospital's actions or omissions suggest that the doctors act on its behalf. Whether a doctor has been "clothed with the trappings" of apparent authority depends upon the totality of the circumstances, including such factors as:
- whether the hospital provided the physician
- the nature of the medical care and whether it is typically an integral part of treatment received at a hospital (e.g., anesthesiology, radiology, emergency care, etc.)
- notices of the relationship or disclaimers of responsibility
- patient's opportunity to reject care or select a different physician
- the patient's prior contacts with the doctor
- special knowledge about the doctor-hospital relationship.
By contracting with the anesthesia group for its patients, the hospital put "in place a system" under which the arrival of a specialist, who had no prior contact with the patient and who failed to explain his relationship with the hospital, at the hospital operating room could lead a reasonable person to assume that the doctor was an agent of the hospital. The hospital failed to take any action to avoid this reasonable inference by a patient who apparently was not given an opportunity to reject the services or select another doctor and who apparently lacked knowledge of the hospital's relationship with the doctor. Under the totality of those circumstances, the Superior Court concluded not only that the plaintiffs could pursue their vicarious liability claim against the hospital, but also that the plaintiffs were entitled to a rebuttable presumption that Cordero believed the doctor to be the hospital's agent.
This decision makes clear the need to take affirmative measures to dispel any notion that doctors act as the hospital's agents. In light of the Cordero ruling, hospitals might be well-served to consider providing--and requiring physicians to provide--notice of the relationship between the hospital and the doctor, as well as disclaimers of responsibility. For example, physicians could be required to wear special badges or emblems on their coats to identify their affiliation, and they could be required to include a special form in their "informed disclosure" packet for patients to sign. Where possible, patients or their families should be afforded an opportunity to reject the doctor or select a different doctor.
To avoid the imputation of liability, some action must be taken to provide disclosure because, at least in the eyes of the New Jersey Superior Court, inaction is as censurable as an outright misrepresentation.
The Cordero decision can be found at this link.
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