When you go to the hospital for a surgery you are seen by a bevy of treaters- anesthesiologist, surgeon, attending physician, residents, etc. And all of them are employed by the hospital, right? Wrong. Many of the physicians that practice at a hospital are actually independent contractors and the hospital can argue that it has no liability for medical negligence these individuals commit- even while working on their property.
In order to bring a claim against a hospital for medical negligence in Illinois by a non-hospital employed physician who provided services at the hospital, there needs to be “apparent authority”. Apparent authority deals with whether the physician appears to be an agent/employee of the hospital or clinic and has the power to act on their behalf. So if a patient can prove that they thought their physician was employed by the hospital and that it was reasonable for them to do so, then the hospital is liable for the negligent physician.
The current case law relies on the decision in York, M.D. v. Rush Presbyterian St. Luke’s Medical Center, et al. (2006 WL 1702529), an Illinois case based locally in Chicago. York established that because a patient relies upon a hospital to provide services during the course of his or her stay then they make hold the hospital liable for negligence by those performing those services, even if they are not employed by the hospital.
Prior to York there was a split over the issue of apparent authority in medical negligence cases. Hospitals typically asserted that it could not be applied unless the patient could prove that they would have gone elsewhere for services if they had known that their physician was not employed by the hospital. So if you would have agreed to receive care at a specific hospital despite knowing that your anesthesiologist was an independent contractor, then you could not claim an apparent authority relationship under this theory.
The other theory, typically applied by plaintiffs, hinges on whether the patient looked towards the hospital to provide all services. So regardless of whether you sought services from a specific hospital because of a surgeon that was on staff, unless you handpicked every member of your medical team you at some point relied on the hospital to provide those services for you. This is key because independent contracted physicians are typically members of the supportive team, such as radiologists, anesthesiologists and pathologists, as opposed to key players like surgeons. Given that the average patient would not be handpicking their radiologist or pathologist, this theory holds the hospital liable for most cases.
And regardless of which theory was applied, both required the plaintiff to prove that they believed the negligent physician was in fact employed by the hospital. Oftentimes this is done by citing that the physician was wearing scrubs or a lab coat with the hospital’s insignia. From there the plaintiff asserts that the physician is held up as a representative of the hospital.
What is unique about York is that the plaintiff himself was a orthopaedic surgeon, who had been an independent contractor at a hospital. Additionally, his son was an anesthesiologist resident at the defendant hospital and the negligence was performed by an independently contracted anesthesiologist. The hospital argued that because of his own experience as an independent contractor and his knowledge of his son’s position, that the plaintiff should have been aware that the negligent anesthesiologist was in fact not employed by the hospital.
Yet the plaintiff contended that he was never informed the anesthesiologist was not employed by Rush, nor did the nature of the consent form imply that services would be provided by anyone other than a Rush employee. Additionally, the anesthesiologist was wearing both scrubs and a lab coat with the Rush insignia. The plaintiff further asserted that he had relied on the hospital to provide his treatment, and not on any one physician.
In its decision the Supreme Court stated that a physician’s appearance as a hospital employee trumps any contracts between the physician and hospital that the patient would not be aware of. Additionally, the court implies that hospitals are pursuing independent contractors “in an attempt to insulate the hospital from liability for negligence”. And because the plaintiff sought care from the hospital itself, and not from a specific physician, there is a reliance that all the care will be provided by the hospital and its staff.
So unless a patient knows, or should have known, that the negligent physician is an independent contractor then under the doctrine of apparent authority the hospital is liable regardless of whether the negligent physician was an independent contractor.
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