The Court of Appeals of Indiana (“Indiana Appellate Court”) held in its Memorandum Decision dated September 15, 2021: “The record in this case, unlike that in Hiland, contains evidence that the patient believed the surgeon was an employee of Hospital. Newlin visited the surgeon in a building directly behind Hospital’s facility and believed all of the physicians located there were employed by Hospital, in part because he was “never told otherwise” … Therefore, even under Hiland, a genuine issue of material fact would exist as to whether Hospital could be vicariously liable for the surgeon’s actions.”
The Underlying Facts
A gastroenterologist referred the plaintiff (“Newlin”) to a surgeon for possible removal of Newlin’s gall bladder. Based on the surgeon’s recommendation, Newlin agreed to the surgery. The surgeon’s office scheduled Newlin’s surgery at the defendant hospital’s facility (“Hospital”). Newlin did not care where the surgery occurred as long as his gall bladder was removed.
The surgery proceeded in August 2015, but complications arose. In his proposed medical malpractice complaint filed with the Indiana Department of Insurance, Newlin named Hospital and the referring doctor, rather than the surgeon who performed the procedure. Newlin withdrew his claim and at that point, the statute of limitations may have expired because Newlin never attempted to amend his proposed complaint to name the surgeon as a defendant. Instead, Newlin proceeded solely against the Hospital under a theory of vicarious liability based on Newlin’s claim that the surgeon was an apparent agent of Hospital and Hospital was liable for the surgeon’s negligence. Newlin did not allege any direct wrongdoing by Hospital or its employees.
Hospital moved for summary judgment, which was denied. At Hospital’s request, the trial court certified the ruling for interlocutory appeal, and the Indiana Appellate Court accepted Hospital’s interlocutory appeal under Indiana Appellate Rule 14(B).
Indiana Appellate Court Decision
The Indiana Appellate Court stated that a hospital will be deemed to have held itself out as the provider of care unless it notifies the patient that it is not the provider of care and that the care is provided by a physician who is an independent contractor and not subject to the control and supervision of the hospital. Absent such notice, special knowledge, or other reasons to know of the actual relationship between the physician and hospital, a patient will be presumed to have relied on the hospital as the provider of care.
In the case it was deciding, the Indiana Appellate Court stated that Hospital essentially acknowledges its notice to Newlin was deficient. The Hospital merely informed Newlin that “some, or all, of the physicians” providing care“ are independent contractors and are not agents or employees . . .” This language is similar to language the Indiana Appellate Court already deemed insufficient to place a patient on notice that a treating physician is not a hospital employee. Additionally, the trial court’s denial of summary judgment was supported by testimony from Newlin that he has only a 9th grade education and he believed the surgeon was employed by Hospital because the surgeon’s office was near Hospital’s facilities. Newlin was also never informed, either verbally or through Hospital’s consent forms, that the surgeon was not Hospital’s employee.
The Indiana Appellate Court held: “Because genuine issues of material fact exist as to whether Hospital could be vicariously liable for the surgeon’s actions under an apparent agency theory, the judgment of the trial court is affirmed.”
Source Anonymous Hospital v. Newlin, Memorandum Decision 21A-CT-111.
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