Hospital Vicarious Liability For Its Doctors’ Medical Malpractice Exists Under Some Circumstances In California

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In California, hospitals almost uniformly contend, when they are sued for medical malpractice, that the doctors who work at the hospital are independent contractors, and the hospital is not liable for the doctors’ negligence. California case law, however, is not so clear and, at least when the patient arrives for emergency care, is to the contrary in most circumstances.

Historically, hospitals were not liable for a doctor’s negligence where they “were classified as independent contractors.” (Mejia v. Community Hospital of San Bernadino (2002) 99 Cal.App.4th 1448, 1452.) California Courts, however, have recently carved out an exception to this rule where there is “ostensible or apparent agency” between the doctor and hospital. (Id. at 1453.)

Under California law, ostensible agency exists in general where “by want of ordinary care” a principal “causes or allows a third person to believe” another is its agent. (California Civil Code section 2317.) In the hospital context, for ostensible agency, this is satisfied where a patient seeks care at the hospital because the hospital is “deemed to have held itself out as the provider of care, unless it gave the patient contrary notice.” (Mejia, supra, at 1454.)

Under California law, “courts assume the physician appears to be an agent of the hospital.” (Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631, 637.) Thus, a doctor is the ostensible agent of the hospital unless the patient was given notice that, in fact, the doctor was an independent contractor.

In 2015, in Whitlow, supra, the California Court of Appeal made it clear that, where a patient arrives at a hospital for emergency room care, the doctors on duty are ostensible agents. The patient in Whitlow arrived at the emergency room “writhing in pain and vomiting,” with a terrible headache. (Whitlow, supra, 237 Cal.App.4th at 640.) The patient had signed an emergency room admission form acknowledging the doctors were independent contractors of the hospital. Stating that emergency room services “implicates the public interest,” Whitlow emphasized the inherent unfairness of “last-minute notice” in an emergency room setting. (Id. at 639.) Whitlow rejected the argument that, in an emergency room setting, an admissions which states that the doctor is an independent contractor precludes a finding of agency.

A recent decision by California Court of Appeal, Second Appellate District, which sits in Los Angeles, supports the conclusion that ostensible agency exists between a doctor and a hospital in the emergency room context. Thus, on October 5, 2016, in Markow v. Rosner (2016) —Cal..Rptr.3d—, the Court rejected a claim of that a doctor was an ostensible authority of a hospital where the patient had treated with the physician for many years, and signed many acknowledgments of the independent contractor relationship. In doing so, however, Markow explicitly noted that the patient “chose” the physician and did not go to the hospital “seeking care from its emergency room.” (Id. at *6.) Markow also emphasized that doctor in question was not “a physician on call” who was assigned to the patient “after he was admitted to the hospital, without [patient] having a choice or say in the matter.” (Id.)

Under recent California law, in most circumstances, an emergency room doctor is likely the ostensible agent of the hospital, regardless of any contrary notice. Moreover, where a patient is admitted to the hospital from the emergency room, and assigned doctors for treatment, there is a strong argument that those doctors, who were not chosen by the patient, are also ostensible agents of the hospital.