Additional Theories for Hospital Direct and Vicarious Liability

“Additional Theories for Hospital Direct and Vicarious Liability”

By: Walt Price and David Fleming
Professional Liability Defense Quarterly
PLDQ Fall 2016

Presuming that juries will more likely return a verdict against a hospital than a local physician, or in search of a “deep pocket,” attorneys representing injured patients have sought to hold hospitals vicariously liable for the actions of independent physicians and affiliated providers such as nurse anesthetists and nurse practitioners. Of course, a hospital will be held liable for employed providers under the doctrine of respondeat superior. Even so, in the case of independent providers liability is often sought alleging that the providers are the direct or apparent agents of the hospital. The general test for direct agency is retention of the right to control the method and manner in which the purported agent practices. Courts across the nation have addressed various factors which may be suggestive of the retained right to control. Even absent this relationship, vicarious liability is frequently sought by alleging that the physician or other provider is the “apparent” or “ostensible” agent of the hospital. Otherwise known as agency by estoppel, this theory of liability is premised upon a belief by the patient that medical services are being rendered by one having authority to act on behalf of the hospital.

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