The emergency room is in chaos. A fugitive, disguised as a hospital orderly, examines a patient when no one is looking. The “orderly” secretly changes the patient’s diagnosis, saving his life.
This is the stuff of Hollywood; and, the method by which Harrison Ford’s character in The Fugitive sought redemption. In real life, though, even the good intentions of independent contractors can introduce serious risk to a hospital.
Consider a recent ruling. A divided Court of Appeals ruled that a hospital may be vicariously liable under the doctrine of apparent agency for a non-employee surgeon’s treatment of a patient in the hospital’s emergency department even though the patient (1) did not know the surgeon; (2) was never introduced to the surgeon; and (3) did not have a choice as to his treating physician.
Williams v. Dimensions Health Corporation involved a patient injured in an auto accident and brought by EMS to the Hospital. The Court of Appeals held there was sufficient evidence at trial for a reasonable jury to conclude the surgeon was an apparent agent of the Hospital because:
- The Hospital’s designation as a Level II trauma center suggested to the public that a surgeon was available to treat patients in emergency circumstances, creating the impression that the surgeon was its agent;
- EMS transported the patient to the Hospital because of the Hospital’s designation as a Level II trauma center; and
- The patient knew he was at the Hospital and relied on the Hospital to treat him.
The majority opinion arguably changes the standard of what satisfies the subjective belief requirement for apparent agency. Before Williams, apparent agency required the patient to have held an objectively reasonable belief that an agency relationship existed and to have relied upon that belief in seeking the services of the apparent agent. Pursuant to Williams, when a patient in acute distress — or one acting in the patient’s interest (here, the EMS providers) — seeks emergency medical assistance, that person looks to the hospital rather than to a specific health care provider.
Bottom Line: Maryland’s expansion of the apparent agency doctrine in the Williams opinion may have significant implications for hospitals, emergency facilities, and providers. A hospital could (perhaps) be held vicariously liable for the acts of any independent contractor simply based upon its designation as a trauma center and treatment rendered via an emergency transfer. In our view, this ruling comes dangerously close to creating strict vicarious liability. It remains to be seen how this decision could be expanded upon in the future.
We represent numerous hospital systems. If you would like to discuss how to better protect your institution from this expanding agency exposure, please contact us. We’re here to help.