November 27, 2013

162017_132140396847214_292624_nWhen you go to the hospital to receive medical care for an acute or chronic condition, you often do not have a choice of the doctors who will treat you. When you arrive at the hospital emergency room, you probably have never been treated in the past by the doctor who treats you and you probably have no idea of the doctor’s credentials or employer.

Most people assume that the doctors that treat them in the hospital are employed by the hospital unless the hospital or the doctors themselves advise them differently. That advice may be verbal (the doctor telling you that he is not an employee of the hospital) or may be provided by some written notice, such as a sign in the emergency room, a sign in the admitting area, or written notification on the admitting forms or other paperwork.

Why is it important to know who employs your hospital doctor? If the care provided to you by the hospital doctor is negligent and causes you to suffer injuries, the hospital may not be wholly or partially responsible to compensate you for your injuries if the negligent doctor was not an employee or agent of the hospital.

The issue of whether a hospital doctor was an agent of the hospital when the doctor allegedly committed medical malpractice is an issue in a Maryland medical malpractice case pending in the U.S. District Court for the District of Maryland.

The Underlying Facts In The Maryland Medical Malpractice Case

A 14-year-old child suffered a serious leg fracture for which he was brought by ambulance to a local Maryland hospital. The emergency room physician paged an on-call orthopedic surgeon from a list that the hospital maintained. The orthopedic surgeon arrived at the emergency room of the hospital and introduced himself to the child’s mother as the orthopedic surgeon who would be treating the child, without identifying whether he was employed by the hospital or some other employer. The orthopedic surgeon determined that the child needed immediate surgery and the child’s mother signed a Consent for Procedure form that contained the name and logo of the hospital. The surgery was performed at the hospital after which the child was admitted to the hospital.

The minor child allegedly was subjected to medical malpractice by the orthopedic surgeon that ultimately resulted in the child having to have an above-the-knee amputation of his right leg.

The child’s mother filed a federal Maryland medical malpractice lawsuit against the orthopedic surgeon, his professional association, and the hospital, alleging that the orthopedic surgeon was acting as an agent of the hospital with regard to the treatment of her child in the hospital. The hospital countered that the orthopedic surgeon was an independent contractor and not an agent of the hospital for which it could be held responsible.

The U.S. District Court judge had to decide whether there was sufficient evidence for a jury to determine whether the orthopedic surgeon was an apparent agent of the hospital in the care of the child.

What Is “Agency”?

Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. A person may be deemed an agent based on actual authority or apparent authority.

Actual Authority

Actual authority exists when the principal knowingly permits the agent to exercise the authority or holds out the agent as possessing it. The relation of principal and agent does not necessarily depend upon an express appointment and acceptance thereof, but it may be implied from the words and conduct of the parties and the circumstances. An actual agency relationship may be established by either written agreement or inference. Actual authority to do an act can be created by written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal’s account.

A principal may, in some circumstances, be liable to third persons in a civil suit for the torts, negligence, and other malfeasance or misfeasance and omissions of duty of his agent. This doctrine of vicarious liability is commonly referred to as respondeat superior and typically arises in the employment context. On a successful claim under the doctrine of respondeat superior, an employer will be held jointly and severally liable for the tortious acts committed by its employee acting within the scope of the employment relationship at that time.

A principal is vicariously liable for the negligence of another when the two share a master-servant or employer-employee relationship, but not if the other is merely an independent contractor of the principal. All masters are principals and all servants are agents, but only when the level of control is sufficiently high does a principal become a master and an agent a servant. Agents who are not servants are regarded as independent contractors. The distinction between a servant and an independent contractor lies in the degree of control exerted by the employer.

The test in determining whether a person is a servant or an independent contractor is whether the employer has the right of control over the employee in respect to the work to be performed (the decisive test in determining whether the relation of master and servant exists is whether the employer has the right to control and direct the servant in the performance of his work and in the manner in which the work is to be done).

Independent Contractor

An independent contractor is generally free to exercise his own judgment and discretion as to the means and assistants that he may think proper to employ about the work, exclusive of the control and direction, in this respect, of the party for whom the work is being done. The reservation of some control over the manner in which work is done does not destroy the independent contractor relationship where the contractor is not deprived of his judgment in the execution of his duties.

Apparent Authority

Under the equitable doctrine of apparent authority, a principal will be bound by the acts of a person purporting to act for him when the words or conduct of the principal cause the third party to believe that the principal consents to or has authorized the conduct of the agent. In medical malpractice cases in Maryland, one who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care and skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.

In the Maryland malpractice case before the U.S. District Court, the judge stated that in order to impute the orthopedic surgeon’s alleged medical negligence to the hospital on a theory of apparent authority, the plaintiff must show that (1) she was misled by the hospital into believing that the orthopedic surgeon was an employee of the hospital; (2) her belief was objectively reasonable under all the circumstances; and (3) she relied on the existence of that relationship in making the decision to entrust the orthopedic surgeon with her minor child’s care.

The federal judge determined that the question of the existence of the agency relationship is a factual matter and must be submitted to the jury (the existence of an agency relationship is a question of fact which must be submitted to the jury if any legally sufficient evidence tending to prove the agency is offered).

Source Song C. Lopez-Krist, Individually and as Parent and Next Friend of N.R.J-L, a minor, Plaintiffs v. Ralph T. Salvagno, M.D., et al., Defendants. Civil Action No. ELH-12-01116.

If you or a loved one may have been injured as a result of medical malpractice in Maryland or in another U.S. state, you should promptly consult with a Maryland medical malpractice attorney or a local medical malpractice attorney in your state who may investigate your malpractice claim for you and represent you in a medical malpractice lawsuit, if appropriate.

Click here to visit our website or call us toll free at 800-295-3959 to be connected with Maryland medical malpractice lawyers (or medical malpractice lawyers in your state) who may assist you with your malpractice claim.

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