United States: Vicarious Liability For Emergency Physicians

Last Updated: August 23 2019
Article by Kevin Baskette

Who is treating you when you go to a Tennessee emergency room?  Is your doctor an employee of the hospital or is he an employee of a staffing service that is an independent contractor, separate and apart from the hospital?  The answer is, almost every time, that your physician is an independent contractor working for a staffing company.  Your physician, believe it or not, is not an employee of the hospital.

Did you know that there is a statute in Tennessee that prohibits hospitals from employing emergency room physicians, along with certain other specialties?  Well there is.  That statute is Tennessee Code Annotated § 68-11-205 (B)(6).  This statute provides as follows:

No radiologist, anesthesiologist, pathologist, or emergency physician may be employed by a hospital or an affiliate of a hospital and no hospital or an affiliate of a hospital may employ any physician to provide medical services provided by a radiologist, anesthesiologist, pathologist, or emergency physician; provided, that a physician may be employed to provide emergency medical services if the physician is employed to provide other medical services.

There is a Theory

Undoubtedly, if you have been to the emergency room in Tennessee, your doctor introduced herself as doctor so-and-so without a label of who she works for.  That physician's employer has nothing to do with the medical treatment you are about to receive.  All you care about is getting quality care and getting it fast.  That is what the physician is there to do – provide you with appropriate care under the circumstances.  The physician's focus is not on making sure you understand that she does not work for the hospital.  She is focused on being your doctor.  Ironically, though, the law in Tennessee has trended toward holding the hospital responsible for the emergency physician's actions, even though the physician is unquestionably not employed by the hospital.  This concept is called apparent agency.

Apparent agency is a legal theory where, absent a traditional employer/employee relationship, an entity can be held responsible for the actions of an individual who is not that entity's employee.  In this case, we have a hospital being held responsible for the actions of an emergency physician who is not its employee.  In a legal sense, an emergency room physician can be the apparent agent of a hospital if a patient can show three things:

  1. The hospital held itself out to the public as providing medical services.
  2. The patient accepted treatment from the physician believing the physician was an employee of the hospital.
  3. The patient chose the hospital for treatment as opposed to choosing the physician.

See Boren Ex Rel Boren v. Weeks, 251 S.W.3d 426 (Tenn. 2008).

In the context of a lawsuit where a patient has sued a hospital and wants to prove apparent agency of the hospital for the emergency physician, it is not altogether difficult to prove if the patient offers testimony.  However, what if the patient cannot testify for one reason or another?  How can the required elements be proven?  Without the patient explaining who he thought the physician worked for, how could the plaintiff ever prove all of the required elements?  The answer appears to be through circumstantial evidence.  See, e.g. Boren, 251 S.W.3d at 434; see also Beard v. Branson, 2017 Tenn. App. LEXIS 735 (Tenn. Ct. App. Nov. 8, 2017).

Here's where it gets tricky

Hospitals are put in a trick bag by being prohibited from employing emergency physicians but being at risk of being held liable for that physician's actions.  How can hospitals proactively protect themselves from being held responsible for actions of physicians that they do not employ and whose practice they do not control?  The obvious answer is that they could require each physician to introduce himself to every single patient as an independent contractor and not an employee of the hospital.  This seems unrealistic, if not impractical.  Hospitals could post conspicuous disclaimers throughout their emergency departments.  They could require patients to sign a form acknowledging their physician is not an employee of the hospital.  Short of a patient's unequivocal acknowledgement that he knows the physician is not associated with the hospital, none of these measures are lock tight.  All of this may be the ultimate direction that hospitals go to further protect themselves from liability.  All I know is, if I am in the emergency room in dire need of treatment, I am not going to pay very close attention to my physician when she tells me who she works for.  I just want to get treated.

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