On September 19, 2012, the Indiana Court of Appeals issued its opinion in Columbus Regional Hospital vs. Clyde Amburgey. The Court allowed plaintiff to proceed against the Hospital for the actions of physicians on staff as apparent agents even though the physicians were not named in the lawsuit. The court found a material issue of fact whether the non-named physicians were apparent agents of the Hospital. Thus, potentially a hospital can be held responsible for actions of apparent agents, such as anesthesiologists, radiologists and pathologists, even if the physician is not named in a lawsuit.
In Amburgey, the patient was admitted for a procedure by Dr. Whitworth. Later, she experienced a decreased level of consciousness and suffered a seizure. Dr. Xu, an anesthesiologist, was consulted along with Dr. Harris, a neurologist. The patient died and her estate sued. Drs. Xu and Harris were not named in the lawsuit. The Hospital was named as a defendant. The complaint alleged the Hospital was negligent and responsible for the actions of its employees and liable for the actions of others through the doctrine of apparent agency.
The case proceeded to medical review panel. The opinion against the Hospital stated “there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.” In the following court case, the patient’s estate filed for summary judgment and alleged the Hospital was responsible for the actions of Drs. Xu and Harris based on an apparent agency argument – specifically, the Hospital did nothing to inform the patient Drs. Xu and Harris were independent contractors and not employees. The Hospital in response argued that they were independent contractors and that the statute of limitations had expired against the physicians, and thus the Hospital could not be responsible for their actions. It too requested summary judgment. The court denied the estate’s motion and found a material issue of fact about the agency issue with the physicians (meaning the case could proceed to a jury trial). The Hospital appealed and argued the Hospital could not be liable for the actions of the physicians because they were not named in the suit and the statute of limitations had expired against them. The appeal was denied.
The court conducted a lengthy review of apparent agency law in Indiana for non-employed physicians. Since the issue of whether the Hospital could be liable for the actions of physicians not sued and for whom the statute of limitations had run had not been decided in Indiana, it turned for guidance to courts in Tennessee and Wisconsin. Those courts had allowed such cases to proceed. The appellate court agreed and held there was a material issue of fact whether Drs. Xu and Harris were the apparent agents of the Hospital. This means a jury will decide if they were apparent agents, and if they were apparent agents the fact they were not named or the fact the statute of limitations had expired against them would not prevent the estate from arguing the Hospital was responsible for them. The procedures in the medical malpractice act applicable to qualified health care providers were not afforded to the allegations against Drs. Xu and Harris. Thus, no panel opinion was issued regarding their alleged negligent care. The Hospital petitioned for a rehearing.
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