One of my law partners, Brian W. Holmes, just wrote an excellent article on Boren v. Weeks, 251 SW3d 426 (Tenn. 2008). In Boren, the Tennessee Supreme Court adopted the Restatement (Second) of Torts § 429 and discussed the measures that a hospital must take to avoid "apparent agency" liability for the acts of non-employee (independent contractor) physicians that practice at the hospital.
Brian practices law predominantly in the areas of hospital law and medical malpractice defense. His article follows. E-mail me if you would like to receive a hard copy of the article by mail.
The Evolving State of Hospital Liability for Non-Employees In the fall 2007 edition of this Newsletter, I wrote about two recent Tennessee Court of Appeals decisions on the issue of "apparent agency" in the hospital context. This doctrine is a favorite tool for plaintiffs who wish to hold a hospital responsible for the acts of non-employee physicians, such as emergency room physicians or radiologists, even when the hospital itself has done nothing wrong. The central fact in both cases was that the patient (or patient’s representative) had signed admission documents clearly stating that the physicians at issue were independent contractors and not employees of the hospital. The Court of Appeals, focusing on the hospital’s conduct rather than the patient’s actual knowledge, found it irrelevant that the patient had not actually read the documents, thus providing relief to hospitals from otherwise nearly limitless liability.
Recently, the Tennessee Supreme Court proved that this relief was merely a mirage. In May of this year, it overturned both decisions.
The Court agreed that "a hospital generally will be able to avoid liability by providing meaningful written notice to the patient, acknowledged at the time of admission," that the physician is not an employee. In these cases, however, the Supreme Court decided that the admission documents did not constitute "meaningful" written notice. The Court noted that the disavowing statements were brief statements in a multi-page document and that the hospital personnel registering the patient did not direct the patient to the statement or otherwise inform the patient that the physician in question was not an employee. The Court also focused on the fact that the hospital did not post any conspicuous signs containing this information.
It is clear now that a hospital must take extraordinary measures to make clear to patients that the physicians providing them care are not employees. These measures should include, in addition to the admission documents at issue in theses cases, specifically and verbally informing patients of this fact and posting conspicuous signs to this effect. For the purposes of proof, it is also advisable to have registering or admitting personnel as well as the patient sign a statement upon admission that the patient has been informed of this specific fact.
Even this may not be enough. The Supreme Court stated that even "meaningful written notice" may not suffice when "a patient does not have an adequate opportunity to make an informed choice, such as in the case of a medical emergency." The Court of Appeals has subsequently relied on this language in a case in which the patient was in "extreme pain" in the emergency room, implying that she was thus forced to accept care in the hospital regardless of whether she knew the physician was not an employee. Thus, a hospital may be able to avoid liability only when it can prove the plaintiff actually knew the provider was not an employee and the plaintiff was in a condition that would allow him or her to reject the services offered and choose another provider. Clearly, this will rarely be the case.
Brian W. Holmes
Cornelius & Collins, LLP
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