In its opinion filed on November 8, 2017, the Court of Appeals of Tennessee at Nashville (“Tennessee Appellate Court”) affirmed that the defendant Hospital was responsible for a share of the $750,000 verdict the Tennessee medical malpractice jury returned in favor of the plaintiff, holding that the radiologist who negligently read the decedent’s CT scan and failed to properly diagnose her condition, which led to her death, was the apparent agent of the defendant hospital, despite language to the contrary in the consent to treatment forms signed by the decedent.
The plaintiff (the surviving husband of the decedent) alleged in his Tennessee medical malpractice wrongful death lawsuit that his wife was an inpatient at the defendant hospital when she had a CT scan that was negligently read by the radiologist, whom the plaintiff alleged was an apparent agent of the defendant hospital for which the defendant hospital would be liable for the radiologist’s medical negligence (the radiologist was not named as a defendant in the Tennessee medical malpractice lawsuit because the statute of limitations had expired with regard to naming him as an individual defendant by the time the lawsuit was filed). As a result of the radiologist’s failure to note and report evidence of free air in the decedent’s abdomen, indicative of a bowel perforation, the decedent was not timely and properly treated, which led to her death.
In order for the plaintiff to hold the defendant hospital liable for the negligence of the radiologist, who was not employed by the defendant hospital but rather provided radiology services to the decedent pursuant to the contract between the hospital and the radiology practice for whom the radiologist worked, the plaintiff had to satisfy the following three-prong test:
(1) the hospital held itself out to the public as providing medical services;
(2) the plaintiff looked to the hospital rather than to the individual physician to perform those services; and
(3) the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee.
The Tennessee Appellate Court stated that the gravamen of apparent agency is conduct of the principal that would create the impression in a reasonable person that services are provided by the defendant or a servant or employee of the defendant. Apparent agency is established through the acts of the principal rather than those of the agent or through the perception of a third party. When the actions or inactions of a hospital create the impression that services are being rendered by the hospital or its servants, a hospital will be deemed to have held itself out as the provider of care unless it gives notice to the patient. Tennessee courts recognize that patients rely on hospitals, not unknown third parties hired by hospitals, to provide services like diagnostic imaging.
The Tennessee Appellate Court stated that a party may prove apparent agency despite the absence of direct evidence of the patient’s reliance on the alleged apparent agency relationship: when the hospital’s actions create an objectively reasonable belief that the hospital itself is offering services, a court may infer that the patient reasonably relied on the health care provider’s apparent authority to act for the hospital.
The defendant hospital argued that neither the decedent nor her husband (the plaintiff) believed that the radiologist was an employee or agent of the hospital because the decedent had signed two patient consent forms whereby they both separately and explicitly acknowledged that “[a]ll physicians and surgeons furnishing services to me, including the Radiologist . . . are independent contractors and are not employees or agents of the hospital.”
The Tennessee Appellate Court stated that it can be significant if the disclosure for consent is buried in a standardized form, thereby not constituting meaningful notice.
In the case it was deciding, the decedent was given seven pages of consent forms to sign upon her admission to the defendant hospital, and the acknowledgment at issue was within these forms: the “Conditions of Admission and Authorization for Medical Treatment” form was on the sixth page and the two-page form included eleven items, some with subparagraphs or bullet points. Patients are required to initial some paragraphs, but not the paragraph entitled “Legal Relationship between Hospital and Physician.” Although the decedent did initial item #1, she did not initial in any of the other spaces provided, specifically items #7 and #8. Furthermore, she did not print her name above her signature, nor did she include the date in the space provided on the form.
The Tennessee Appellate Court further noted that the defendant hospital failed to call attention to the “Legal Relationship between Hospital and Physician” section to the decedent: the notice explaining the legal relationship between the physician and the hospital is buried in the fine print.
Because the defendant hospital had stipulated to the first required element regarding proving apparent agency (i.e., that the hospital held itself out to the public as providing medical services), and the plaintiff in this case had established the second and third elements, the Tennessee Appellate Court affirmed the grant of partial summary judgment on the issue of the radiologist’s agency.
Source Beard v. Branson, No. M2014-01770-COA-R3-CV
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