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.
