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 permitted to practice medicine or surgery in this state and, consequently, the hospital had to allow physician to provide patient care services independently
How later courts described this case
- 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 permitted to practice medicine or surgery in this state and, consequently, the hospital had to allow physician to provide patient care services independently
- recognizing utilization of both theories and citing cases from numerous jurisdictions adopting theories
- if hospital holds itself out as provider of medical services and, in the absence of notice or knowledge to the contrary, patient looks to hospital as opposed to individual practitioner to provide medical care
- terming it “agency by estoppel”
Written by the judges who cited it.
The opinion
Wright, J.,
dissenting. My former colleague, Justice Ralph Locher, certainly said it right. The battle cry in this era of burgeoning litigation is “sue, sue, suel ” 2 “Deep pocket” suits are upon us but for little purpose.
The majority’s pejorative description of stare decisis as “ ‘ “petrifying rigidity,” ’ ” in this particular context defies comment. I say this because the precedent overturned today merely states that if a hospital employs an intern, resident or any other medical practitioner, it must answer in damages for their actions on the job. Conversely, if a doctor is working as an independent contractor within a hospital and the medical facility does not hold itself out as that doctor’s employer, the hospital should not be joined in an action for malpractice against the doctor. Today, the majority rejects this precedent.
From this day on no malpractice action evolving out of an incident within a hospital will be brought without joining the medical facility as a co-defendant and this will include the costs of defense attendant thereto.
In this period of burgeoning costs to the medical consumer the majority has surely taken a step backwards.
I concur in the Chief Justice’s commentary and vigorously dissent.
. See Justice Loeher’s dissent in Nottingdale Homeowners’ Assn., Inc. v. Darby (1987), 33 Ohio St.3d 32, 37 , 514 N.E.2d 702, 707 .