# Clark v. Southview Hospital & Family Health Center > Ohio Supreme Court · March 16, 1994 · 68 Ohio St. 3d 435 URL: https://www.frixlaw.com/law-library/cases/6768791 ## Case - **Full name:** Clark, Admr. v. Southview Hospital and Family Health Center - **Court:** Ohio Supreme Court - **Decided:** March 16, 1994 - **Citations:** 68 Ohio St. 3d 435 - **Precedential status:** Published - **Opinion:** Dissent by Moyer - **Judges:** Douglas, Moyer, Pfeifer, Resnick, Sweeney, Wright - **Cited by:** 134 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6768791 ## How later opinions describe it (automated extraction) - finding hospital's ability to dictate policies and procedures regarding patient care and to grant and revoke staff privileges did not constitute a sufficient degree of control to establish an employment relationship because only licensed physicians, not hospitals, are permitte… - recognizing utilization of both theories and citing cases from numerous jurisdictions adopting theories ## Opinion text Moyer, C.J., dissenting. I respectfully dissent. In its attempt to mitigate the perceived harshness of Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251 , 553 N.E.2d 1038 , the majority swings the pendulum so far to the other side as to make a hospital the virtual insurer of its independent physicians. In Albain , this court held that a hospital may be found liable for the acts of its staff physicians under the doctrine of agency by estoppel. Id. at paragraph four of the syllabus. To establish such liability, Albain required the plaintiff to prove that “(1) the hospital made representations leading the plaintiff to believe that the negligent physician was operating as an agent under the hospital’s authority, and *447 (2) the plaintiff was thereby induced to rely upon the ostensible agency relationship.” In my view, the instant case presents a set of facts that could be found to satisfy the Albain test for agency by estoppel and demonstrates that there is no need to overrule paragraph four of the Albain syllabus. As the majority points out, the evidence in this case established that Southview Hospital, through its advertising materials, held itself out as a hospital with an emergency room that possessed “the latest technology and equipment” and that could “handle all major medical emergencies.” . Prior to her medical emergency, plaintiff had made a specific decision to go to the Southview Hospital emergency room if she were to have a medical crisis. She apparently passed directly by a closer hospital on her way to Southview. As I read Albain , a reasonable trier of fact could have, based on this and other evidence at trial, found Southview hable through agency by estoppel. Instead, the majority overrules paragraph four of the Albain syllabus and substitutes a new test for agency by estoppel. Thus, a majority of the court persists in its eagerness to overrule recent and well-reasoned precedent. The court justifies its departure from the doctrine of stare decisis in this case by implying that the standards enunciated in Albain will lead to “unfairness, * * * doubt and confusion.” At a time when the rising cost of medical care surpasses most other issues on national agendas, a majority of this court have acted to substantially increase the acts of doctors for which hospitals will be required to provide insurance. The test the majority has established will unfortunately increase the cost of providing medical services and create more unfairness, doubt and confusion than it resolves. Numerous questions arise when one tries to analyze and predict the consequences of the newly announced standard. For example, what does it mean for a hospital to “hold itself out” to the public as a provider of medical services? Does not every medical hospital do so when it erects a sign saying “hospital” on its premises? The majority cites approvingly to Rubbo v. Hughes Provision Co. (1941), 138 Ohio St. 178 , 20 O.O. 233 , 34 N.E.2d 202 , for the proposition that the hospital need only make a representation to “a class of persons of whom the plaintiff is one.” Does this require that the plaintiff even be aware of the representation? Does the “holding out” of the hospital require any specific representations about the emergency room? As to the second prong of the newly announced test, what constitutes “notice or knowledge to the contrary?” The majority has indicated that a sign in the emergency room is not sufficient. Will disclaimers in the hospital’s brochures and advertisements be sufficient? Will a hospital be able to insulate itself by promoting, for instance, “the excellent care provided by its independent staff physicians?” *448 In addition, the final element of the majority’s new test, which requires that the plaintiff look to the hospital as opposed to the individual physician to provide competent care, is entirely subjective. Once a plaintiff testifies that he or she “looked to the hospital” as opposed to the individual practitioner, a hospital defendant will have almost no effective means to disprove the plaintiffs subjective state of mind. The majority criticizes Albain for requiring the plaintiff to prove reliance in a wrongful death case, stating that it would be “virtually impossible.” The newly announced test, however, which depends exclusively on the decedent’s state of mind at the time he or she received medical care, presents the very same problem of proof. Finally, to what extent must the plaintiffs “looking to the hospital” be a direct result of the hospital’s representations as opposed to the plaintiffs ambient information — or disinformation — about how hospitals are structured and operate in general? More doubt and confusion will arise when the majority’s holding is applied in other factual settings. For example, some large department stores rent space in their stores to purveyors of individual lines of products, such as cosmetics. In doing so, does a department store hold itself out to the public as a “provider” of cosmetics, subjecting it to liability for the negligent acts of the independent contractors on its premises? The majority asserts, and I agree, that stare decisis should not prevail when precedent leads to injustice and unfairness. I also agree that the role of hospitals in society has changed dramatically over time. Nevertheless, I do not agree that merely because hospitals have come more to resemble businesses than charitable institutions, this court should dramatically weaken their ability to limit contractually their liability for their independent agents. This court should not force hospitals to be excess insurers of their staff physicians. Nor has plaintiff shown that, in the great majority of malpractice cases, the physician’s insurance will be inadequate to' cover the full amount of damages. Estoppel is an equitable doctrine that, according to Black’s Law Dictionary (6 Ed.1990) 551, mandates that “[a] party is prevented by his own acts from claiming a right to detriment of other party who was entitled to rely on such conduct and has acted accordingly.” (Citing Graham v. Asbury [1975], 112 Ariz. 184, 185-186 , 540 P.2d 656, 657-658 .) It is a doctrine rooted in considerations of fairness that prevents a party from benefiting from a representation, and later denying it. By requiring reliance, the Albain test properly embodied this concept. By eliminating the need for a nexus between the representation and a specific act by the plaintiff in reliance thereon, the new standard loses sight of the basis for applying estoppel in the first place. The new standard penalizes a hospital where it has reaped no benefit from its own actions. *449 The essence of the problem in these cases is the tension between making hospitals liable in all instances and making them liable in none. The majority criticizes Albain because it “abrogated the very exception [it] claimed to create.” The fact that the instant case may be decided favorably to the plaintiff under Albain , however, demonstrates otherwise. Moreover, I believe that the majority has committed the same fault to the opposite extreme: it has created a rule that swallows the exception. If the Albain standard unduly limits the class of potential plaintiffs, the more jurisprudentially sound approach would be to modify, interpret or soften the holding of that case instead of conducting the radical surgery performed by the majority opinion. For example, this court could choose not to follow the dicta in Albain that the plaintiff prove that he or she would have refused treatment had he or she known of the agency relationship. 50 Ohio St.3d at 264 , 553 N.E.2d at 1050 . This is the difference between the incremental development of the common law and judicial legislation. In a time of ever-increasing medical costs and potentially drastic changes to our health care system, this court would do well to take caution in its radical redistribution of liabilities for acts of medical malpractice. A.W. Sweeney and Wright, JJ., concur in the foregoing dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6768791. Public record. Not legal advice.