Holding Hospitals Liable for the Negligence of Non-Employee Physicians
In this modern and very competitive age of medicine, many hospitals are launching aggressive marketing and advertising campaigns in a quest to obtain market recognition and garner public trust and patronage. Many of these advertising campaigns feature physician endorsement of the hospital or, conversely, hospital endorsement of certain physicians and include all forms of media, ranging from bill-boards and television ads to print ads in small local newspapers. Either way, the message in these advertising campaigns is unmistakably clear: “Choose our Hospital – We provide excellent care;” the obvious implication being that the “We” refers not only to hospital staff and providers of nursing care, but to the physicians that practice at the hospital as well.
In many instances, the physicians appearing in these ads and practicing medicine at these hospitals have actually been recruited by the hospital to move to the city where the hospital is located, open a private practice within the city and, of course, bring business and patients to the hospital facility for medical treatment and procedures. In turn, the hospital grants the physician privileges to practice medicine in the subject hospital and agrees to pay the physician an annual salary as well as, in some instances, a “recruiting” or “signing” bonus for becoming part of that hospital’s “team.” While the vast majority of these “recruited” physicians and/or “ hospital team-members” are paid by the hospital as independent contractors rather than as employees, that subtle but significant legal distinction is generally not disclosed to the unsuspecting patient who believes, when she goes to the hospital for treatment, that the physicians provided to treat her are employed by the hospital.
So what, then, is a patient to do when she goes to the hospital for treatment, is provided by the hospital with one or more of its recruited–but non-employee–physicians, and is seriously injured through the negligent acts and/or omissions of those physicians? Since these physicians are not “employees” of the hospital, the hospital’s vicarious liability for their negligence is not assumed. However, in certain circumstances, a hospital may be held liable for the negligence of its non-employee physicians under a theory of apparent authority. Although still an issue of first impression in Utah, the theory of apparent authority has gained wide-spread acceptance throughout the country, as a significant number of jurisdictions have whole-heartedly accepted the apparent authority doctrine as a means of allowing a patient to hold the hospital responsible for the negligence of its non-employee physicians.
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This article was written by Jacquelynn D. Carmichael & Jordan P. Kendell.
