Posted on: 7/20/2012
Jennine A. Gerrard, Bower Monte & Greene
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Like all businesses, the healthcare facilities that we defend advertise on the Internet. In this competitive market for healthcare, hospitals create flashy websites advertising their superior staff, new technology, perhaps marketing themselves as a special type of treatment center, emphasizing one procedure or area of medicine. And patients are paying attention. They remember which hospital advertises "bloodless surgery," or holds their facility out as the best place for cardiac care. Advertising is crucial, but the way your client words their hospital website may allow plaintiffs to bring a viable claim against the hospital when the prevailing case law says that they should be insulated.
While this article focuses on New York state law, nearly every state has something akin to "ostensible agency" theory, where the patient's impression as to whether they are being treated by a representative of a hospital is the controlling factor to potentially impose liability on the hospital. Some states have even made ostensible agency theory statutory, like California and Texas. In every case, though, the facts regarding treatment must be carefully examined, to see whether the patient was going to seek treatment from a specific doctor who is simply affiliated with a hospital, or whether they were seeking treatment at a hospital and assuming everyone there to be acting as agents.
When a Risk Manager receives a Summons and Complaint in New York, the first question that they ask is whether the patient was a private patient or a service patient. The first discussion that they have with defense counsel is whether or not this is a "Mduba situation," referring to the prevailing case law which allows service patients who come in through the Emergency Room to sue the hospital under a theory of vicarious liability. Mduba v. Benedictine Hosp., 52 A.D.2d 450, 384 NYS2d 527 (1976).
Normally in New York, a hospital is not held liable for the acts of private attending physicians. Hill v. St Claire's Hosp., 67 NY2d 72, 499 NYS2d 904 (1986). There are exceptions to this, but they come up fairly infrequently. Generally, if the patient does not come in through the Emergency Room, and is admitted for treatment with their private doctor, the hospital is insulated from liability for the acts of the physician. An exception would involve a situation where the hospital maintains some type of control or supervision over the doctor. Klippel v. Rubinstein, 300 A.D.2d 448 (2d Dept, 2002). The amount of control that the hospital exerts over the doctor's treatment can tilt the scales, and overcome the rule that private physicians are legally separate from the hospital.
Another situation in which a hospital may become liable for the acts of a private attending physician is when the patient perceives the care that they are receiving to be from hospital staff. Obviously, this situation is very fact specific, and it is important for counsel to take a thorough deposition to establish how the patient came to be treated in the hospital, or whether the physician was provided by the hospital (such as a radiologist or anesthesiologist), and whether the patient reasonably believed that the physician was acting at the hospital's behest. Sarivola v. Brookdale Hosp. and Med Ctr., 204 AD2d245, 612 NYS2d 151 (1st Dept, 1994), citing Soltis v. State of New York, 172 A.D.2d 919 (3rd Dept, 1991). This is called "ostensible agency theory," and is the portal through which plaintiffs may attack your hospital client as a result of poorly worded websites or advertising.
There are two elements required to establish a medical malpractice claim against a hospital based on an ostensible agency theory. First, there has to be an element of "holding out" the private physician with conduct or words attributable to the hospital. Second, the patient must accept the doctor's services in reliance on their belief that the physician was an employee or agent of the hospital. Sampson v. Mt. Vernon Hospital, 2008 NY Slip Op 7648; 55 AD3d 588; 865 NYS2d 634 (2nd Dept, 2008).
In the following case, the way in which a New York hospital worded its website opened it up for liability under the ostensible agency theory.
Imagine that a wrongful death case commences against a prestigious New York hospital, known for its prowess in cardiac care. The plaintiff sues several private attending physicians as well as the hospital. The named physicians are in a private group, not employed by the hospital. No claims are made with respect to any hospital staff. The Risk Manager can breathe a sigh of relief, right? Not so fast. As discovery began, the patient's wife testified that she and her husband chose this particular hospital because of its reputation for excellent cardiac care. She testified that she went onto the hospital's website, as she did not know the names of any specific doctors, and saw a highlighted section entitled, "Our Doctors." This part of the website contained a drop-down menu which listed the names of all the private physicians, without any language explaining that they were affiliated with the hospital but not employed by the hospital. The plaintiffs picked a name at random, called the physicians' group for an appointment, and thus the relationship began. In this case, there was an argument made at trial that the hospital had exposure under the theory of ostensible agency, as the hospital's website explicitly held the physicians out as "their doctors."
Under this theory, it is the plaintiff's perception that governs. It is the same theory under which hospitals are held liable as the de facto excess insurer of private groups providing services in anesthesia and radiology. The average patient does not think about the fact that the person taking their x-ray during a hospital admission is a private attending physician, not employed by the hospital. The case law often supports claims against hospitals for such services, as the patients believe that they can rely upon the fact that people treating them in the hospital are in fact, hospital employees. This issue has been covered in cases such as Dragotta v. Southampton Hospital, 39 A.D.3d 698, where the Court denied the hospital's motion for summary judgment, holding that there was an issue of fact as to whether a hospital may be liable for a private radiology group providing services within.
In the case discussed above, in which the hospital held private physicians out as "Our Doctors" on their website, the private attending physicians won their case, mooting the issue of vicarious liability for the hospital. However, the plaintiff's attorney did make this argument in the middle of trial, and the Court felt that it was a fair question to submit to the jury. The hospital has since redesigned its website, to include a disclaimer, explaining that certain doctors are not employees of the hospital.
Although there is no case law yet in New York with respect to vicarious liability for hospitals based on their website's design or advertising, there is an analogous case which deals with printed materials given to patients. In Contu v. Albert, 18 A.D.3d 692, 795 N.Y.S.2d 740 (2nd Dept, 2005), a plaintiff sued a hospital, seeking to impose vicarious liability for treatment by private physicians. In this case, the hospital was handing out printed brochures, stating that patients would receive a personal consultation with the defendant doctors, who were a "team of specialists" that comprised the hospital's prostate unit. The Court held that the hospital was vicariously liable for the defendant doctors' negligence because it held the doctors out as its employees through an advertising campaign. They said that, "Apparent agency may be found when a hospital represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent." The patients relied on the brochure, which referred to the defendant doctors as part of their "team of specialists." The Court said that this was enough to hold the hospital responsible for the private physicians.
By now, you have hopefully pulled up your client/hospital's website and carefully examined the wording to make sure that private physicians are not being "held out" as employees or agents of your client's facility. To be sure, referring to them as "Our Doctors" may be enough to let this issue go to a jury to decide. Any type of advertising by your client's facility should contain language distinguishing private physicians from hospital staff in a way that will not discourage patients from selecting your client/hospital. The distinction between advertising that a group is "our team" and "a team of specialized physicians affiliated with the facility" seems subtle, but the more information that patients are given about the relationships of medical staff to the hospital, the smaller your chances are of battling a case for liability based on the theory of ostensible agency.
Jennine A. Gerrard, Esq. is Of Counsel to the firm of Bower, Monte & Greene, P.C., in New York, NY and specializes in defending doctors, hospitals, dentists, nursing homes and other healthcare facilities. Ms. Gerrard has been a medical malpractice defense litigator since 1991, when she started as a law student working for the NYC Law Department, defending municipal hospitals in the Bronx. Since admission to the New York Bar, she has been in private practice. jgerrard@blawpc.com