Virginia Supreme Court Limits Hospital Liability

Published on: 9/21/2005

In a much-anticipated decision, the Virginia Supreme Court has refused to hold a hospital vicariously liable for the alleged negligence of an independent contractor.
In Sanchez v. MediCorp Health System, d/b/a/ Mary Washington Hospital, Inc., Record No. 042741, Sanchez alleged that he was negligently treated for a head wound by an emergency room physician, an independent contractor of the hospital. Named as defendants in the action were the emergency room physician, the physician's practice group and the hospital. Sanchez alleged that the physician was an employee of the practice group and was acting within the scope of that employment when he treated the plaintiff. Despite his acknowledgment that the doctor was not employed by the hospital, Sanchez alleged that the hospital had held the physician out as its employee and agent and should therefore be vicariously liable for the physician's alleged negligence under the theory of apparent or ostensible agency.

The hospital, represented by Randy Wimbish and Margaret Hardy of Sands Anderson, filed a demurrer asserting that Virginia law does not recognize a claim for vicarious liability arising out of the alleged negligence of an apparent agent. The trial court agreed and sustained the demurrer.

On appeal, Sanchez argued that the doctrine of apparent agency is well-settled in Virginia and should be expanded to hold hospitals liable for the negligence of emergency room physicians acting as independent contractors. In rejecting Sanchez' argument, the Virginia Supreme Court noted that the cases relied upon by Sanchez were contract claims, not tort claims. The Court agreed with the hospital that, in fact, the theory of apparent agency has never been applied in Virginia in the tort context and there was no reason to do so in this case.

In arguing that such an expansion of hospital liability should be permitted as a matter of public policy, Sanchez cited the evolution in the nature and scope of hospital care in recent years. Sanchez asserted that Mary Washington Hospital, like many modern hospitals, has created a public image as a full service facility offering complete health care services to the public through its advertising of the quality care it provides throughout the facility, including the emergency department. According to Sanchez, by permitting the emergency room physician to see and treat him using hospital equipment and supplies, the hospital further created the appearance that the treatment he received was provided by the hospital through one of its employees and by creating such an appearance the hospital should be vicariously liable for the treatment provided. That argument has been quite successful elsewhere. The majority of jurisdictions outside of Virginia that have addressed the issue have decided to impose vicarious liability on hospitals under the circumstances presented on a theory of apparent agency. In refusing to follow that trend, the Virginia Supreme Court noted that virtually all of those jurisdictions had previously adopted tort liability on the theory of apparent agency in other contexts before applying it to hospitals.

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