Parker v. Freilich

KELLY, J.,

Concurring and Dissenting.

¶ 1 I agree that the trial judge did not violate the coordinate jurisdiction rule when it granted Appellee’s motion for non-suit. However, I must depart from the majority’s decision on the application of ostensible agency and on the ultimate disposition of the case.

¶ 2 Capan, supra and its progeny have consistently reiterated that ostensible agency is an exception to the general rule of nonliability of the principal for the torts committed by an independent contractor. See id. at 648; Section 429 Restatement (Second) of Torts. In support of its decision to apply ostensible agency to hospitals, Capan notes the changing role of the hospital in society, which has led to the likelihood that patients will look to the hospital rather than to the individual physician for care. Id. at 649. The second justification for applying ostensible agency is if the hospital “holds out” the physician as its employee. Id. A “holding out” occurs “when the hospital acts or omits to act in some way which leads the patient to a reasonable belief that [she] is being treated by the hospital or one of its employees.” Id. (emphasis in original). In its determination to apply ostensible agency to the facts of the case before it, the Capan Court noted the lack of evidence that the hospital informed Mr. Capan of the doctor’s independent contractor status or lack of evidence of any reason why Mr. Capan should have been on notice of the doctor’s independent employment status. Id. at 650.

¶ 3 The party asserting ostensible agency has the burden to raise a fact issue on whether the principal held out the independent contractor as an agent or employee, or knowingly allowed the independent contractor to hold himself out as such. Unless the services of the independent contractor are accepted in the reasonable belief that the independent contractor is an employee of the principal, that burden has not been sustained. See id.

¶ 4 In the instant case, there is no dispute that Appellant looked to Appellee for her initial care. The question here is whether Appellee held out the nurse anesthetist as an employee or whether Appellant should have been on notice that the nurse anesthetist was not a part of the physician’s staff. Id. In other words, would a prudent patient in Appellant’s position have assumed that Nurse Shaw was Appellee’s employee?

¶ 5 Here, Appellant admitted she had received, filled out, and signed two new forms, a health history form and an authorization form, related strictly to her anesthesia. Both forms contained conspicuous information that the person administering the anesthesia would be from R & P Anesthesia Associates. The anesthesia authorization form also directed further inquiries to the two persons listed on the form at a location and telephone .number different *751 from that of Appellee’s group. The anesthesia authorization specifically states:

I hereby authorize and request R & P ANESTHESIA ASSOCIATES to administer the necessary anesthetics to _(Name) which, in their opinion, may be deemed appropriate for the surgical procedure to be performed by _(Physician’s Name) on _(Date).

I certify that the nature of the anesthetic procedures, including risks and possible complications, have been explained to me and that I understand the purpose of this authorization form.

(See Anesthesia Authorization, attached as Exhibit D to Appellee’s Motion for Summary Judgment). Additionally, Appellant testified she had not met or ever seen Nurse Shaw on any visit to Appellee’s office before the day of the procedure. Appellant presented no evidence that Ap-pellee had billed her or her insurance for the anesthesia component of the procedure. Appellant’s assumption that Nurse Shaw worked for Appellee was not reasonable in light of the evidence putting her on notice that Nurse Shaw worked for someone else.

¶ 6 Moreover, ostensible agency is essentially an affirmative defense to the assertion of independent contractor status. Each time a physician provides services in his office, the physician does not necessarily hold out his office as a “full service institution.” Thus, an ostensible agency theory of liability for the physician’s independent contractors should not arise simply because the physician offers services to patients in his office. Granted, due to the changing nature of medical care, an increasing number of procedures may be performed outside the hospital or in the physician’s office. Nevertheless, my chief concern lies with the broad imposition of an affirmative duty upon all physicians, using the services of an independent contractor to perform an in-office medical procedure, to explain and ensure the patient’s understanding of the legal distinction between an employee and an independent contractor. The imposition of this affirmative duty fails to recognize that the ostensible agency theory of liability can be avoided by indirect notice as well. See Capan, supra. The imposition of this affirmative duty on individual physicians is a significant change in the law, and places additional legal and financial burdens upon the physician for the actions of others who are not the physician’s employees.

¶ 7 Under the facts of this case, I conclude the trial court properly refused to send “ostensible agency” to the jury. Accordingly, on the issue of ostensible agency, I must dissent.