May 19, 2021

The Commonwealth of Kentucky Court of Appeals (“Kentucky Appellate Court”) held in its unpublished opinion rendered on April 16, 2021 in a Kentucky medical malpractice case where the plaintiff sought to hold a hospital liable for the alleged medical negligence of a surgeon who allegedly left sponges in a patient during surgery: “we conclude that, despite potential ambiguities in the hospital’s forms, Jewish Hospital took reasonable steps to notify patients they would be treated by independent contractor physicians. We see no evidence of any intent to deceive patients into believing that the physicians were Jewish Hospital employees, nor do we see evidence that the physicians were held out as employees. Therefore, we hold that no genuine issue of material fact existed as to whether Dr. Dowden was an ostensible agent of Jewish Hospital.”

The Underlying Facts

On July 24, 2015, Phillip Cundiff (“Cundiff”) underwent open-heart quadruple bypass surgery at Jewish Hospital, in Louisville. Dr. Allen Cheng (“Cheng”), an employee of University of Louisville Physicians, Inc., performed the procedure. Cundiff subsequently experienced significant bleeding. Dr. Cheng ordered his chest immediately reopened to address the problem. The nature of the complication required Dr. Cheng to open and close Cundiff’s chest multiple times before the bleeding was controlled by packing surgical sponges around his heart.

By July 29, 2015, Cundiff sufficiently recovered to enable Dr. Cheng to perform a chest washout and closure, a follow-up procedure intended to remove the surgical sponges and permanently close his chest. During the procedure, Dr. Cheng removed two sponges not listed in Cundiff’s medical chart. There was apparent confusion regarding the number of sponges packed in Cundiff’s chest. To ensure all sponges were removed, Dr. Cheng ordered X-rays. The X-rays were read by Dr. Erik Dowden, a radiologist employed by Radiology Specialists of Louisville, a physicians group contracted to provide such services. Dr. Dowden reported no sponges in Cundiff’s chest. Dr. Cheng closed Cundiff’s chest and sent him to the ICU to recover. A CT scan contradicted Dr. Dowden’s report and showed two surgical sponges remaining in Cundiff’s chest cavity and causing significant permanent injury.

Cundiff filed a medical negligence claim against Dr. Cheng, University of Louisville Physicians, Inc., and Jewish Hospital. Because the limitations period had lapsed for actions against Dr. Dowden and his employer, neither was named as a defendant. However, Cundiff amended his claim against Jewish Hospital to allege its vicarious liability for Dr. Dowden’s negligence based on the doctrine of respondeat superior and ostensible agency principles.
The circuit court concluded, on these undisputed facts, that Dr. Dowden was not Jewish Hospital’s actual or ostensible agent; therefore, Jewish Hospital was not vicariously liable for Dr. Dowden’s conduct.
Cundiff v. Cheng, NO. 2019-CA-0374-MR.

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