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By Tony Wright
A hospital could be sued for medical malpractice by a patient's estate even though the treating physician was not technically an employee of the hospital, a U.S. District Court judge has ruled.
The hospital argued that the estate could not meet the "apparent agency" standard requiring it to prove that the deceased patient had actually believed the doctor in question was an agent or a servant of the hospital and, as such, relied to his detriment upon the physician's care.
But Judge Mary M. Lisi disagreed, finding that the fact-intensive determination as to whether the estate met the standard weighed heavily in its favor.
"Here, there was sufficient evidence adduced at trial by plaintiff from which a reasonable jury could infer that [the decedent] believed that [the treating physician] was a hospital physician and that [the decedent] relied on that understanding," wrote Lisi, denying the hospital's motion for judgment as a matter of law.
The eight-page decision is Calderone v. Kent County Memorial Hospital, et al., Lawyers Weekly No. 52-025-05.
Fact Sensitive
Providence attorney David G. Morowitz, who represented the plaintiff estate, said that it would have been impossible for him to provide direct evidence of the patient's actual understanding of the doctor's relationship with the hospital since the man was deceased.
"He couldn't testify to what his thoughts were," Morowitz said. As a result, Morowitz said, he was able to present other evidence to show it was reasonable that the decedent had no reason not to believe that the treating physician worked for the hospital.
Michael G. Sarli of Providence, who represented the hospital, said because the standard relies so heavily on the individual facts in each case, it is difficult to comment on the standard generally.
"It's sort of fact-specific, so there's not much you can say about it one way or another" he said.
Premature Release?
Joseph Calderone arrived at Kent County Memorial Hospital on March 17, 2002, with chest pain, according to his family. The hospital claimed he presented with abdominal pain.
Dr. Barry Mellow was the treating physician. Mellow, like all physicians who worked at the hospital, were employed by Kent Emergency Physicians, Inc., and not by the hospital itself.
After some consultation, it was determined that Calderone did not need to be admitted to the hospital and he was released. He died of an aortic dissection days later. His wife sued the hospital for medical malpractice.
At the conclusion of the plaintiff's evidentiary presentation, the defendant hospital moved for judgment notwithstanding the verdict on the issue of whether Dr. Mellow was an apparent agent of the hospital on the day in question.
The court denied the defendant hospital's motion, delaying until after the trial's conclusion a written opinion setting forth the basis for the denial.
In the interim, the jury returned a verdict for the defendant.
Direct Evidence Not Required
Rhode Island courts look to a 1993 state Supreme Court case, Rodrigues v. Miriam Hosp., for addressing the applicability of the doctrine of apparent authority to med-mal cases.
In Rodrigues, the court put forth the criteria that a patient must satisfy in order to successfully invoke the doctrine against a hospital.
The patient must establish "(1) that the hospital, or its agents, acted in a manner that would lead a reasonable person to conclude that the physician was an employee or agent of the hospital, (2) that the patient actually believed the physician was an agent or a servant of the hospital, and (3) that the patient thereby relied to his detriment upon the care and skill of the allegedly negligent physician," Lisi wrote.
Lisi disagreed with the defendant hospital's position that there was insufficient evidence from which a reasonable jury could have concluded that the decedent actually believed that Mellow was an employee or agent of the hospital, or that he relied to his detriment on that belief — prongs two and three of the standard.
"The hospital does not require emergency department physicians to inform patients of their status as non-Kent employees. The hospital does not have a procedure for doing so," wrote the judge.
She continued: "It is not a routine practice for the emergency room doctors to inform patients of their employment status. Dr. Mellow testified that he did not tell the decedent or any member of the Calderone family that he was a non-hospital employee and that he did not do anything that would have led the Calderones to believe that he was not employed by the hospital."
Lisi added that the decedent's son testified that Mellow introduced himself as the emergency room physician who would be attending to his father. The son also recalled Mellow wearing some kind of "personnel-type" identification.
"Considered in its entirety, the above-mentioned testimony provided a more than ample basis from which the jury could reasonably infer that the decedent believed that Dr. Mellow was a hospital employee or agent," wrote Lisi.
"Moreover, the jury could reasonably infer that Mr. Calderone, by presenting to Kent's emergency department and consenting to treatment by a physician who identified himself as the emergency room doctor, was relying on the hospital itself to provide appropriate medical care to him through its staff," Lisi added.
"[T]he Court does not view Rodrigues as imposing a direct evidence requirement," the judge noted.
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March 28, 2005
