Holding Hospitals Responsible for Doctors' Negligence

Richard McCorry had heart and back problems. His condition worsened, and his doctor recommended surgery.

In October, 1994, Dr. Thomas Hurley performed surgery at Christ Hospital. McCorry awoke from the procedure unable to move his legs and was permanently paralyzed. He filed a lawsuit against the surgeon and the hospital.

The patient testified that he thought the doctor was on the hospital staff. In literature provided patients, Christ Hospital claimed that it provided a hospital staff including hundreds of highly qualified physicians; and it referred to the doctors as "our physicians." The hospital’s consent form for the operation did not indicate that it did not employ the surgeons or other physicians working in the hospital.

McCorry said he saw his doctor only in the hospital or the office building at the hospital. He said he went to that surgeon because of his confidence in the hospital and the doctors on staff.

In a motion for summary judgment, though, the hospital claimed that it was neither the actual nor apparent agent of Hurley. Christ Hospital did not employ the surgeon, nor did it pay him wages or a salary because he was an independent contractor.

The trial court granted the hospital’s motion for summary judgment, but on appeal the 1st District Appellate Court reversed and held that a question of fact existed on this issue. McCorry v. Evangelical Hospitals Corp., Ill.App.3d(No. 1-01-1227), decided on June 3, 2002). It found, "The hospital advertised itself as a full-care facility supplying quality health care." Id.

The ruling is another in a line of cases in Illinois and a trend across the country to find that hospitals can be held responsible for the negligent acts of independent physicians when it acts in a manner that would lead a reasonable person to conclude that the tortfeasor was an employee or agent of the institution and the plaintiff acts in reliance on that conduct.

In the last decade, Illinois has expanded on this concept of apparent agency. The courts examine whether the plaintiff "is seeking care from the hospital itself or whether the plaintiff is looking to the hospital merely as a place for his or her personal physician to provide medical care." Gilbert v. Sycamore Municipal Hospital, 156 Ill.2d 511, 525, 622, N.E.2d 788 (1993).

As sound as this approach may appear to be at first blush, it is becoming more and more difficult to make such a determination because the lines between apparent agency, respondeat superior, nondelegable duty, right to control and direct duty are blurring as a result of some hospitals’ actions.

First, it is clear that hospitals are hiring more and more physicians and other personnel as independent contractors in an effort to delegate what is a nondelegable duty to provide health care to the public. Avoiding liability for negligently provided care merely by contracting out the service should not be allowed by the courts and some have so held. Simmon v. Tuomey Medical Center, 341 S.C. 32, 533 S.E.2d 312 (2000).

Furthermore, public policy demonstrates that a great majority of the public looks to a hospital to provide all-inclusive health care needs; and it cannot be expected to figure out the technical complexities or nuances surrounding contractual or employment arrangements of a hospital and its various personnel. Often a person seeking medical care has no choice in choosing its health care provider, or disclaimers in forms may not be clear or even intelligible to a person who is only looking to get healthy.

The modern medical institution is a complex operation, and it clear that it exists for a reason far beyond merely providing a place for treatment. They charge patients for a variety of services, including diagnosis, care treatment and therapy from a number of different medical professionals.

To place the burden on the patient, generally under a great deal of personal pressure, to sort out relationships and figure out those who are staff and those who are acting solely on their own is not realistic nor in keeping with the integrated nature of today’s health care providers.

Some courts have examined a hospital’s liability in light of its ability to control the actions of the physicians. Berel v. HCA Health Services, 81 S.W.2d 21 (Tex.Ct.App.1st Dist. 1994). In Corrigan v. Methodist Hospital, 874 F.Supp. 657 (E.D.Pa. 1995), the court found a hospital can be sued for negligently failing to oversee its doctors and failing to adopt and enforce adequate rules and policies.

If the hospital requires certain credentialing or review policies, as well as abiding by the hospital bylaws and continuing medical education requirements in order to practice there, court in some jurisdictions have held the hospital vicariously liable.

In fact, some jurisdictions have held a hospital directly liable for the failure of the institution to properly monitor and supervise the delivery of health care. Blanton v. Moses H. Cone Memorial Hospital, Inc., 319 N.C. 372, 354 S.E.2d 455 (1987); Raschel v. Rish, 110 A.D.2d 1067, 488 N.Y.S.2d 923 (App.Div.1985); Benedict v. St. Luke’s Hospitals, 365 N.W.2d 499 (N.D.1985).

Legal mechanisms involving contributory negligence already are in place in this state to apportion liability, and courts should be cognizant of hospitals attempting to delegate what should be a nondelegable duty in fashioning relationships to avoid responsibility.