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In the recent decision, Cordero v. Christ Hospital, the New Jersey Appellate Division reaffirmed the longstanding principle that a hospital may be held vicariously liable for an independent physician’s negligence.
The decision is significant because the Court set forth definitive factors to assess whether a patient could reasonably conclude that an independent physician providing care at the hospital is doing so as the hospital’s agent.
Below is a brief synopsis of the general rule on hospital vicarious liability, followed by a summary of the Appellate Division’s decision, and then practical recommendations for hospitals to limit their exposure to vicarious liability.
I. General Rule on Hospital Vicarious Liability for Physicians:
The general rule in New Jersey is that a hospital is not liable for the acts of an independent physician with whom it contracts. However, courts have long held that where an independent physician acts under “apparent authority” from a hospital -- such that a patient reasonably believes he is being treated by an agent of the hospital -- the hospital may be held vicariously liable for such acts.
II. Summary of Cordero Decision:
In Cordero, the husband (and estate) of a former patient sued a hospital for the patient’s death which was caused by the negligence of an anesthesiologist at the hospital. The anesthesiologist was not an employee of the hospital, but rather provided care through a contract between her group practice and the hospital. The Appellate Division reversed the trial court’s grant of summary judgment in favor of the hospital.
The Appellate Division found that, based on the “totality of circumstances” surrounding the patient’s care at the hospital, it was reasonable for the patient to assume that the anesthesiologist acted under apparent authority from, and on behalf of, the hospital - - and not as an independent provider.
Because the hospital (through its actions and inaction) did not distance itself from the anesthesiologist’s actions, the court ruled that the plaintiff was entitled to a rebuttable presumption that she had accepted care from the anesthesiologist under the reasonable belief that the anesthesiologist acted as the hospital’s agent, under the hospital’s control. This new standard places the burden on hospitals to rebut such a presumption.
The Court also clarified that it is possible for a hospital to “hold out” a physician as its own employee or agent without actively misrepresenting the hospital’s relationship with the physician or taking affirmative actions to mislead the patient.
The Cordero Court found the following factors relevant in determining whether or not a hospital’s acts or omissions could lead a patient to reasonably believe that a particular physician was acting on the hospital’s behalf:
A. Whether or not the hospital supplies the physician for the patient.
B. Whether the medical care provided by the independent physician is typically an integral part of the medical treatment received in a hospital, such as emergency care, or anesthesiology and radiology services.
C. Whether the hospital provided the patient notice of the physician’s independent status or disclaimed responsibility for the physician’s services.
D. Whether the patient had an opportunity to refuse the service or select a different physician.
E. Whether the patient had prior contact with the physician.
F. Whether the patient had any special knowledge about the physician’s contractual arrangement with the hospital.
III. Practical Recommendations:
In light of the Cordero decision, hospitals should consider the following recommendations as a means of reducing their exposure to vicarious liability:
A. Conspicuous Signs:
Post conspicuous signs (e.g., in the Emergency Room, Operating Room and admissions areas): (i) stating that a majority of the physicians providing services at the hospital are NOT employees of the hospital, but rather are independent practitioners - - and that this includes, for example, emergency room physicians, radiologists, anesthesiologists, pathologists ; surgeons, internists, pediatricians and specialty care physicians; and (ii) encouraging patients to ask questions about the physicians who are (or will be) providing their care, and advising them of their right to request a different physician.
B. Patient Acknowledgment:
Include in admissions documents a separate form which (i) repeats the contents of the notice described in A. (i) & (ii) above, and (ii) which is signed by the patient acknowledging that they have been notified of this information.
C. Website Notice:
Include on the hospital’s website a notice with the same information described in A. (i) & (ii) above.
D. Physician Identification:
Consider requiring independent physicians to visibly display identification which clearly labels their independent status.
E. Extra Precautions:
The foregoing recommendations are especially important for hospital-based departments (e.g., emergency room, radiology, anesthesiology, and pathology), which provide care to patients through physicians with whom the patient does not have a prior or ongoing relationship.
F. Advice from Malpractice Carrier:
Before implementing any of the recommendations above, or taking other precautions to address the issue of vicarious liability, consult with your malpractice carrier and, if applicable, your regular malpractice defense counsel. Your carrier may have preferences on what actions you should take, and it is important to act consistent with any requirements in your malpractice policy.
© Sills Cummis & Gross P.C.
© Copyright 2013 Sills Cummis & Gross P.C.About the Author
