Recent Court Decision Helps Protect Hospitals

Published on: 3/31/2004

Each day thousands of Virginians visit hospital emergency rooms seeking treatment for a wide variety of injuries and illnesses. Almost all of these patients are evaluated at some point during their visit by an emergency physician. More often than not, this emergency physician is not an employee of the hospital, but rather an independent contractor who has privileges to treat patients in the emergency room, much like a surgeon has privileges to treat patients in the operating room. When a patient receives treatment at the hospital from a surgeon, a cardiologist or an obstetrician, that physician is usually chosen by the patient well in advance of the hospital visit based on a variety of factors. The patient is likely to have seen the physician in an office setting prior to the hospitalization. This is usually not the case in the emergency room. The patient does not choose which physician will provide treatment. When injury or sudden illness strikes, the patient's thought is more likely "I need to get to the emergency room" or "I need to get to the hospital, "than "I need to go see Dr. Jones." These circumstances can combine to create the mistaken impression that the emergency physician is an employee of the hospital.

Search for Deep Pockets
This misperception can have serious consequences if the patient alleges that the care provided by the emergency physician was negligent. In light of the current insurance crisis, patients with a claim against an emergency physician are increasingly likely to sue the hospital as well, even if no hospital employees are alleged to be negligent, in search of a deep pocket to pay the claim. Such a claim is based on the doctrine of apparent agency, which seeks to hold a hospital liable even if the emergency physician is not an employee for whom the hospital would be responsible under traditional tort law. The idea behind this theory is that the hospital should be liable for the physician's negligence because the hospital held the physician out to the public as its employee, or because the patient reasonably relied on the hospital to provide a physician in the emergency setting.

Negligence Claim
Fortunately, thanks to a decision recently obtained by Randy Wimbish, Chair of Sands Anderson's Healthcare Practice Group, Virginia hospitals and other corporate healthcare providers should be able to defeat claims based on the alleged apparent agency of physicians in the emergency room and elsewhere. The case involved an interstate truck driver who was assaulted and transported by ambulance to the emergency room in the middle of the night. He was evaluated and eventually discharged by an emergency physician. He was subsequently diagnosed with a significant intracranial bleed, and filed suit against the emergency physician and the hospital. The sole basis for the claim against the hospital was the alleged negligence of the emergency physician.

The plaintiff argued that he did not go to the emergency room to see a specific physician. Rather, he argued that he went to the closest hospital, where he expected to receive appropriate care from whatever physician the hospital made available to him, and that the physician provided was an apparent agent of the hospital for whom the hospital could be held liable. The plaintiff also argued that the hospital had a non-delegable duty to provide competent medical care to patients in the emergency room.

Upper Hand for Hospitals
Judge Ledbetter of the Circuit Court of the City of Fredericksburg rejected both of these arguments. First, he held that the plaintiff's "novel and broad" attempt to establish a non-delegable duty in the emergency room was not recognized under Virginia law. Second, Judge Ledbetter held that "Virginia does not recognize the doctrine of apparent agency in this type of case." The court therefore sustained the demurrer that Sands Anderson filed on behalf of the hospital. This aggressive approach not only eliminated the hospital's exposure to a significant claim, but also dramatically reduced the cost of defense of the lawsuit.