In many negligence lawsuits, there are theories of direct liability and theories of vicarious liability. Direct liability occurs when a named defendant has engaged in negligence. Vicarious liability occurs when a named defendant may not have acted with negligence, but may be held liable for the negligence of another due to a special relationship with that person.
For example: A parent could be vicariously liable for the actions of a minor child. A vehicle owner could be vicariously liable for the actions of the person driving the car. An employer could be held vicariously liable for the actions of an employee acting in the course and scope of employment.
In medical malpractice lawsuits, this issue of vicarious liability can be used to take a hospital to task for the negligence of staffers that result in harm to patients. However, many of those who work in hospitals are not employees, but rather independent contractors. This can apply to doctors, nurses, aides and others.
Generally, a company can’t be held vicariously liable for the actions of an independent contractor. However, there may be exceptions based on a legal theory known as “apparent authority.”
Apparent authority occurs when a reasonable third party would understand that the agent (i.e., independent contractor) was acting under the authority of the employer. This would make the employer liable for the agent’s actions – even if the agent had no actual authority, express or implied.
So let’s say for example that a company gives an independent driver use of a truck with its logo. When the trucker is in town, he works from the company’s office, uses a business card with the company’s name and log on it. It could be argued that a reasonable third party believed the independent contractor was an employee of the trucking company – even if he wasn’t actually – and liability could be established.
In medical malpractice law, the same could be argued of a doctor or nurse who, for example, wears a uniform with the hospital’s logo, has a hospital phone number and/or email address, a business card with the hospital logo, etc.
There are no hard-and-fast rules when it comes to establishing apparent authority because the standard is what a reasonable person would opine.
In the recent case of Navo v. Bingham Memorial Hospital, the question was whether plaintiffs – representative of the estate of a patient who died during surgery at defendant hospital – could argue the theory of apparent agency where the nurse anesthetist was concerned.
According to court records, the nurse anesthetist was an independent contractor who administered anesthesia services at the hospital.
Patient suffered a broken ankle while exiting his truck and had to undergo surgery the following day to have a metal rod installed. Unfortunately, the metal rod became infected and he had to undergo a second surgery a month later. Prior to the surgery, patient signed a document indicating he understood all doctors and anesthesiology providers are independent contractors – not employees or agents of the hospital.
On the day of surgery, he was given an an anesthesia and procedure consent form that did not indicate whether the anesthesia services would be given by the hospital or an independent contractor. That form was printed on hospital letterhead and the hospital logo and contact information.
The registered nurse anesthetist, an independent contractor, administered anesthesia. Patient’s heart rate, blood pressure and oxygen levels plummeted. He was stabilized and surgery continued. However, when surgery was completed, nurses could not revive him. He remained non-responsive until death.
Plaintiffs filed a medical malpractice lawsuit against the hospital and the nurse anesthetist, alleging the nurse, hospital and its agents failed to exercise reasonable care in the exercise of medical judgment in line with local standards. The complaint did not expressly set forth a theory of agency (i.e., theory of apparent authority) in which the hospital was accused of being liable for the nurse’s actions. However, the complaint did indicate the hospital’s liability for “its agents.”
Hospital moved for summary judgment arguing plaintiff had not asserted a breach of local standard of care against any hospital employee (because the nurse was not an employee of the hospital).
District court granted that motion, but the Idaho Supreme Court reversed. It found district court erred in finding appellants were barred from arguing apparent authority in response to defense motion for summary judgment.
The court noted that apparent authority is not in and of itself a cause of action, but it is a legal theory through which agency arises, and therefore, may be grounds against a claim for vicarious liability.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Navo v. Bingham Memorial Hospital, April 26, 2016, Idaho Supreme Court
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