Blog

Medical Practice: Vicarious Liability

VICARIOUS LIABILITY: POTENTIAL IMPLICATIONS FOR YOUR MEDICAL PRACTICE

Presented to California Radiological Society, September 18, 2005

by

Martin P. Weniz, Esq.
Law Offices of Martin P. Weniz
11755 Wilshire Boulevard, Suite 1300
Los Angeles, CA 90025
Tel. 310 268-5555
Fax. 310 268-5557
marty@wenizlaw.com

Physicians may be liable for committing their own negligent acts. They may also be liable for negligent acts committed by others. When the negligence of one person is imputed or placed upon another, the other person is set to be vicariously liable.

The most common type of vicarious liability is known as respondat superior, the term which means “let the superior respond.” Typically, this is an employer-employee relationship. It may also apply to a relationship between a physician and a nurse.

Respondiat supeior is based on a premise that all persons are responsible for the consequences of both their own actions and the actions of those persons for whom they are answerable.

Historically, vicarious liability did not apply to a relationship between hospitals and the doctors who work within the hospital. Slowly this concept has eroded. Courts initially limited the vicarious liability of hospitals to negligent acts committed only by physicians and nursing staff employed by the hospital. Hospitals were not  considered responsible for actions of non-employed medical staff or hospital-based physicians, who were considered independent contractors.

More recently, Courts in various states have started a trend that has imposed upon hospitals vicarious liability for the acts, the negligent acts of independently contracting physicians. This extension of hospital liability to hospital-based radiologist has significant ramifications for radiologic practice.

Reasoning that hospitals have encouraged the public to believe that hospital-based physicians such as radiologist, pathologist, anesthesiologist, and emergency department physicians are hospital employees or agents, even if these physicians are, technically, independent contractors, Courts have generally set forth two factors that are relevant in determining whether a hospital is liable for negligent acts committed by these physicians. These factors are whether the patient looks to the institution, rather than to the individual physician, for medical care, and whether the hospital told holds out that the physician is its employee.

In effect, the Courts were sustaining that hospitals held certain duties that are so fundamentally important that they cannot be delegated to others. These non-delegable duties are so important to society that no entity should be permitted to escape liability by transferring responsibility to another.

Why should radiologists be concerned about whether Courts impose upon hospitals vicarious liability for independently contracting physicians? If radiologist are sole employees of the hospital in which they practice, the additional burden of vicarious liability will probably little, if any, effect, because employers are clearly legally responsible for actions of their employees.

If radiologists are practicing and billing separately from the hospitals from which they practiced, Court expansion of vicarious liability may have significant ramifications. Hospital management is given legal responsibility for actions of radiologist practicing within the facility and may well want to increase the control exerted upon those radiologists.

The Joint Commission on Accreditation of Health Organizations (JCAHO) has for many years imposed requirements on hospitals to ensure the quality of hospital services such as the diagnostic radiology, nuclear medicine, and radiation oncology. Couple with the trend of the Courts to enforce liability on hospitals, provide hospitals for a persuasive argument to exercise tighter control in maintaining the quality of these services rather than to delegate responsibility to their independently contracting radiologists.

Summary

What impacts will the concept of ostensible agency on the hospital-based radiologists?

  • Hospital-based none salary radiologists who bill independently can minimized the likelihood of being consider legal agents of the hospital in which they practice by informing their patients in a diplomatic but none-threatening manner that they are not hospital employees. One way in this can be done is by placing signs in strategic locations throughout the Radiology Department that indicate that radiologists are in private fee-for-service practice and by including similar information on billing forms.
  •  Hospital-based none salary radiologists who don’t independently and are questioned by colleagues on their medical staff, other hospital employees, will patience as to whether they are hospital employees should stay clearly and firmly that they are not. Radiologist should not misrepresent their status or otherwise mislead in any way patients or other physicians of their actual professional and financial relationship to the hospital.
  • Hospital-based none salary radiologists practicing in states that have ruled that hospitals are vicariously liable for negligent acts and independent contracting physicians should not be surprised if hospital management attempts to institute tighter controls on the manner in which they practice. In many cases the concerns expressed by hospital management may be legitimate, and radiologists must deal with these issues realistically. Radiologists should seek legal advise from their own attorneys concerning these issues.

Apparent Agency

Under the doctrine of apparent agency, a principal may held liable for the conduct of an independent contractor if the principal conducts its business in such a way as to give the impression to others that the contractor is acting on the principal’s behalf. Most States have applied this rule to hold hospitals liable for negligence of independent contractor-physicians. California applied this rule in the case of Mejia v. Community Hospital of San Bernardino.

A hospital may be held liable under the doctrine of apparent agency for the negligence of independent medical practitioners practicing in the hospital if it holds itself out to the public as a provider of medical services and in absence of notice and knowledge to the contrary, the patient looks to the hospital, as opposed to the individual practitioner to provide competent medical care. Unless the patient merely viewed the hospital as the place where her physician would treat her, she had a right to assume and expect that the treatment was being rendered through hospital employees and that any negligence associated therewith would render the hospital liable. Clark v. South View Hospital.

Courts have not ruled out the possibility that hospitals can avoid liability by notifying the patient that the physicians treating the patient are independent contractors. Commonly, hospital admission forms contain provisions which state that the physicians working within the hospital are independent contractors. Most instances these provisions will be upheld, unless it is difficult or impossible for the patient to have received such notice, as in the case where patient is brought into an emergency room comatose.

More recently, the California Court of Appeals held that a hospital could be held vicariously liable for the negligence of a non-employee radiologist. In the California case, a woman went to the emergency room after hearing something poop in her neck. X-rays were taken and reported as normal by an independent contractor radiologist. As a result, patient was discharged home. After experiencing continuing problems, the plaintiff went to a different hospital were she was diagnosed with a fracture neck.

The plaintiff sued the hospital, the radiologist, and the emergency room physician. The trial court dismissed the plaintiff’s vicarious liability claims against the hospital at closed of her case. The jury concluded that the radiologist was negligent and that the emergency room physician was not. On appeal, the Court of Appeal reversed the trial judge’s dismissal of the plaintiff’s claim that the hospital was vicariously liable for the radiologist’s negligence.

After surveying the case law from other states, the Court observed that overwhelming majority of jurisdictions employed ostensible or apparent agency to impose liability on hospitals for the negligence of independent contractors physicians. Summarizing the requirements employed by the other states, the California Court, wrote that the hospital must hold itself out to the public as a provider of health care and the plaintiff must have looked at the hospital for services, rather than any particular physician. The Court continued on to explain that “there is really only one relevant factual issue” whether the patient had reason to know that the physician was not an agent of the hospital. This is so, according to the Court, because hospitals are generally deemed to have held themselves out as a provider of services unless they gave the patient contrary notice, and the patient is generally presumed to have looked at the hospital for care unless he or she was treated by his or her personal physician. Thus, unless the patient had some reason to know of the truly true relationship between the hospital and the physician-i.e., because the hospital gave the patient actual notice or because the patient was treated by his or her personal physician-ostensible agency is rarely inferred.

The Court admitted that “it appears difficult if not impossible for the hospital to ever obtain a non-suit base on the lack of ostensible agency” because all the patient needs to show is that he or she sought treatment of the hospital. Unless, the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital’s agent, such as when the patient is treated by his or her own personal physician, the issue of ostensible agency must be left to the trier fact.

None Delegable Duty

How Do I Get My Medical Records?

You may want to obtain copies of your medical records, but are uncertain about how to go about getting them. The doctor, or hospital, or other health care provider who has your records may be reluctant to provide them to you, knowing that you have become dissatisfied with your care and treatment. The health care provider will be concerned that you want the records simply to find out whether or not you have a “good case” in a potential lawsuit.

There is no denying that a common reason for a patient to request records is to get an opinion as to whether the health care provider may have committed medical malpractice. Often, the patient will already have consulted with another doctor, and/or a lawyer. Sometimes this will be because the patient suspects that malpractice was committed, or, as I often find, the patient simply wants to understand why the treated medical condition has not improved, or has even gotten worse.

In California, (and, I’m pretty sure in other States, as well) your medical records belong to YOU, the patient. They are not the “property” of the health care provider. They are yours. You do not need to give a reason or provide an explanation as to why you are seeking your medical records. In California, so long as an appropriate written request is provided, and you pay a reasonable fee, your records must be turned over to you or your designee.

The remainder of this article will discuss what you need to do in order to get your medical records from a health care provider in California.

Health care providers keep records to document your care and treatment. Medical records are an important component of the care and treatment provided to any patient. Even small medical offices will usually have a “Records” Department, or at least some part of the office’s operation will be devoted to the accumulation, organization, and copying of medical records. In major hospitals, Records Departments are vast operations, employing large numbers of individuals.

Generally, each medical provider will have its own printed “Release” or “Authorization” form which they will provide you for your signature. However, even if the health care provider does not have its own form, your handwritten request, specifying that you want “all of your medical records,” is acceptable. You may make your request for your medical records by sending the medical provider either a letter, e-mail, or a fax; or, you, or your designee can personally make the request at the provider’s facility. When providing your own request, you should provide your name and address, your telephone number, your e-mail address, your medical record number, if you know it, your date of birth, and the date(s) of service (such as the dates you were in a hospital). Finally, you should describe the information that you want to see or copy, which may include whether you want the entire record or just part of it. The medical provider is entitled to obtain certain other information from you, such as your social security number, and identification such as a driver’s license, since these are good ways to identify you. There is nothing in the State or Federal laws which prohibits this practice.

Your medical privacy is important, so health care providers are required to establish procedures to ensure your confidentiality under State and Federal Law. The specific Federal and California requirements which make the release or authorization lawful, will not be addressed in this article. Virtually all health care providers’ will have printed forms that meet the lawful confidentiality requirements. Periodically, the laws have been amended, so the requirements that are contained on the form will also change.

Under California law, Health care providers, including doctors, hospitals, HMOs, etc. must permit you to inspect your medical records during business hours within 5 working days from the time your written request has been received by the provider. It may be necessary for you to pay reasonable clerical costs in connection with locating and making your records available for inspection. Naturally, most people are not looking to read and inspect their records at the health care provider’s facility. They want a copy. You do have the right, however, to both inspect your records and get a copy.

The health care provider must provide copies of your records for not more than $.25 per page, or $.50 per page for records copied from microfilm. The health care provider does not have to give you copies of your diagnostic images (X-rays, MRIs, CT scans, etc.) if they provide them to another health care provider upon your written request within 15 days after receipt of the request. If you are seeking copies of X-rays or other diagnostic images, you can be charged all reasonable costs, not exceeding actual costs, incurred by your doctor, hospital, clinic, etc. in providing copies. It is usually a good idea to ask for an estimate of these costs before you request they be copied.

Generally, I find that it is reasonable to give the medical provider the full 15 days to locate and copy the records requested for later pick up. The law allows for up to 15 days, but it is generally not a good idea to be rigid about this requirement. You will likely be charged for this service, and you may also be required to pay this cost up front.

If you meet resistance in getting the records, politely but firmly inform the representative of the health care provider, that these records belong to the patient, not the doctor, hospital, clinic, etc. Not uncommonly, a health care provider will procrastinate and not provide the records within the mandated time.. What should you do then? Generally, through persistence you will eventually receive the items you requested. However, if you do not, it is probably not a bad idea to see an attorney for assistance (although even seasoned attorneys, who commonly request medical records on behalf of clients or prospective clients, will sometimes have difficulties in obtaining records).

California, Evid. Code Section 1158 provides that when an attorney or his or her representative presents a proper written authorization, the health care provider shall promptly provide the sought records. Failure to make the records available, during business hours, within 5 days after the presentation of the written authorization, may subject the person or entity having custody or control of the records to liability for all reasonable expenses, including attorney’s fees, incurred in any proceeding to enforce Evidence Code Section 1158. Sometimes, a court order is necessary to obtain records from the recalcitrant health care provider.

Personal Injury Law Attorney

Have you been injured as a result of a car accident? A premises liability accident, such as a “trip and fall” or “slip and fall?” A defective product? Have you or a loved one received substandard care from a doctor, a hospital, or some other health care provider which resulted in injury or death? Legal cases resulting from these sorts of injuries are examples of Personal Injury Law, or Negligence Law.

Personal injury cases can arise for any number of reasons. Did the other driver cut you off, or rear end your vehicle? Did the owner of the supermarket fail to warn about the recently waxed floor? Was there a broken or damaged handrail or stair which caused or contributed you to your fall? What’s important to determine is whether someone (an individual, a business, a governmental entity, etc.) is legally responsible for causing the injuries you sustained and the resulting damages. In other words, was somebody negligent, and did that negligence cause you harm?

If you have been injured, and you think that somebody else is responsible for causing your injuries, you should speak to a personal injury lawyer for an evaluation of the facts of your case. Of course, if your injuries are only slight and not significant, as a practical matter it may be difficult to pursue a case. If you are in doubt as to whether your injuries are sufficiently severe, you should seek the opinion of a qualified attorney.

What else should you do if you think you may have been injured as a result of someone else’s negligence? First, seek appropriate medical attention. See a doctor, or go to the emergency room if necessary. This is very important. Your health matters first and foremost, but it is also important to have medical documentation of your injuries in the event that you do pursue a legal case.

For a free evaluation of your potential personal injury case, call The Law Firm of Martin P. Weniz. Call us toll free for a free consultation. 1-866-441-4446. We handle negligence cases of all sorts, including wrongful death, auto accidents, medical malpractice, premises liability cases, spinal injury cases, etc. All our cases are taken on a contingency basis, and we don’t get paid unless we successfully resolve your case, whether by settlement or trial. We give you the personal attention you deserve for your personal injury case.

Wrongful Death Cases

All too often, people die tragically and needlessly as a result of someone else’s negligence. Wrongful death cases refer to those lawsuits that are brought by family members of the deceased individual who died as a result of the negligent acts of another. The aim of the wrongful death case is to properly compensate the family for the financial and emotional losses brought about by the death of their loved one.

In California, there are some “wrinkles” to the wrongful death case that are not typically found in other types of injury cases. Obviously, since the lawsuit cannot be brought by the individual who has died, it must be brought by one or more other persons. However, the members of the class of people who are allowed to bring the case is strictly governed by the Probate Code under California law. Not just any “loved one” who was close to the deceased individual can sue. With certain exceptions, a significant other who was not married to the deceased individual cannot bring a wrongful death lawsuit, even though this person may have had the very closest relationship to the decedent, and, indeed, may have sustained the greatest loss.

Not only is the individual who may sue regulated under California law, but the types of damages that the individuals can claim is also regulated under California law. For example, family members of the deceased individual may sue for the financial support that the decedent would have contributed to the family during his or her life expectancy, but it is based on whose ever life expectancy was shorter, the deceased individual, or the person bringing the lawsuit. Another unusual damage in the wrongful death case is the “loss of gifts or benefits” that the person bringing the lawsuit would have expected to have received from the decedent during the decedent’s life expectancy. The reasonable value of household services that the deceased individual provided to his home is also compensable, as is the loss of the decedent’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support.

The jury instruction which sets forth the law discussing the type of damages that may be received in a wrongful death case also says that the jury may not consider the plaintiff’s (i.e. the person who is suing) grief, sorrow, or mental anguish, or the plaintiff’s poverty or wealth. And the jury is also not allowed to consider the decedent’s pain and suffering which resulted in the death.