Today, there are almost as many billboards for hospitals as there are for attorneys. These facilities, especially in metropolitan areas, compete to attract not only patients, but also quality physicians. It has become common for hospitals to contract with physicians and physician groups to provide exclusive in-house medical care and treatment. It is also common for hospitals to contract with private physicians to provide on-call coverage for their patients. But who is ultimately responsible when negligent care occurs?
Every physician who renders medical care and treatment to patients in a hospital must first obtain the hospital’s permission to do so by applying for and obtaining very specific medical staff privileges. Physicians may only render care and treatment within the specific parameters of the privileges granted to them by each hospital. Given the relationships existing between hospitals and their staff physicians, various theories of vicarious liability may arise providing for additional coverage in cases where medical malpractice occurred in a hospital.
Apparent Agency
This theory of vicarious liability may arise when a hospital holds out a physician as its employee or agent, and a patient reasonably relies on that representation in the receipt of treatment. Apparent agency may occur when a hospital advertises its services to the public, provides a physician with a coat or nametag bearing the hospital’s name, and/or when the hospital provides a physician to a patient. Many Florida courts have held that lack of choice by the patient in selecting a physician provided to them by a hospital is sufficient to create a jury question. In certain situations, even private physicians may become apparent agents of the hospital, making the hospital vicariously liable for their actions.
Actual Agency
When a hospital controls a physician’s provision of medical care and treatment, a claim for actual agency may arise. Florida courts have held that writings such as contracts, bylaws, rules and regulations, as well as policies and procedures may be evidence of a hospital’s control over a staff physician. It is the right to control the physician, not actual control, that is determinative of an actual agency relationship. Getting clarity on this issue requires skilled lawyering and properly developing a discovery plan.
Joint Venture
If a hospital contracts with a physician or group or creates a third-party corporation utilizing physician services, a joint venture relationship may arise. In Florida, a joint venture may be created through both an express or implied contract. Such a relationship exists when there is: 1) a community of interest in performance of a common purpose; 2) joint control or right of control; 3) a joint proprietary interest in the subject matter; 4) a right to share in profits; and 5) a duty to share in losses. A duty to share in losses may impliedly exist where one party provides the skill, labor, or know-how, and the other party provides the facilities or capital.
Non-Delegable Duty
The theory of a non-delegable duty is more of a direct claim against the hospital rather than a vicarious one, but may arise whenever a hospital directly or impliedly assumes responsibility for the care rendered in its facility. A non-delegable duty may arise when the hospital has a patient sign an admission/consent form for the provision of medical care. Often, because these forms are confusing and drafted in favor of the hospital, a jury question will arise as to the scope of the hospital’s responsibility for care rendered within its walls. In other situations, courts have determined that a non-delegable duty existed pursuant to an implied contract or statute. The existence of a duty involves a question of law, so it may be permissible for a trial court to decide this issue. However, because the terms of a hospital’s admission/consent form usually involve mixed questions of law and fact, trial court judges may be reluctant to grant summary judgment, thus properly allowing the issue to proceed to the jury.
It is important to evaluate the facts of each case early on to ensure the appropriate causes of action are timely and appropriately plead. The attorneys at Paul Knopf Bigger have extensive experience in successfully evaluating and litigating these issues to maximize client recoveries in cases involving malpractice in the hospital setting.
