On Feb. 10, 2017, the Alabama Supreme Court issued an important decision relating to liability of hospitals for the acts of their independent contractor emergency room physicians. (Melissa Bain, in her capacity as personal representative of the Estate of Christopher Heath Bain v. Colbert County Northwest Alabama Health Care Authority d/b/a Helen Keller Hospital, Ms. 1150764, on appeal from the Circuit Court of Colbert County, Alabama.)
Bain sued the hospital in her capacity as personal representative of the estate of her deceased husband, Heath, who died 20 days after an emergency room visit to Helen Keller Hospital, where the emergency room doctor failed to diagnose an ascending aortic aneurysm that ultimately resulted in his death. Bain sued the hospital, emergency department physician, and emergency department nurses, alleging that the ER doctor, who was an independent contractor, was an actual or apparent agent of the hospital and that the hospital was vicariously liable for the actions of the ER doctor and the nurses. Bain also argued that the hospital had a nondelegable duty to provide emergency care that fell within the applicable standard of care. The trial court granted summary judgment in favor of the hospital and Bain appealed. In a per curiam opinion joined by six justices, the Alabama Supreme Court affirmed the summary judgment.
A. ER Nurses
Bain first argued that trial court erred in granting summary judgment with respect to the nurses who treated Heath in the emergency room, because they failed to obtain a comprehensive history which would have revealed family history of aneurysm. Bain argued that the family history would have led a reasonable emergency room physician to order a CT scan of Heath’s chest, which would have revealed the aneurysm and resulted in surgery. The hospital presented evidence that the ER physician was aware of this family history. Bain argued that the question whether the ER physician was actually told of Heath’s health history was a jury question. However, Bain herself testified that the ER doctor took a family medical history. Thus, the Supreme Court held that Bain’s causation theory against the nurses failed because the evidence showed that the ER doctor did receive Heath’s history from a different source.
B. Apparent Authority
Bain next argued that the trial court erred in granting summary judgment on her claim that the hospital was vicariously liable for the ER doctor’s negligence. The court noted that because the hospital made a prima facie showing that the ER doctor was an independent contractor, and because the hospital did not reserve a right of control over the ER doctor, Bain had the burden to prove the existence of an agency relationship. Bain conceded that there was no evidence of actual agency, but argued that the doctrine of apparent agency, or agency by estoppel applied, based on the principal’s holding out of the agent to third parties as having authority to act. The court noted that in order to impose respondeat superior, there must be reliance on the part of the injured person. Thus, Bain had to prove
- that the hospital held the ER doctor out as its employee or agent or permitted the ER doctor to hold himself out as such;
- that because of those acts, the decedent, Heath, had an “objectively reasonable” basis for believing that the ER doctor was the hospital’s agent; and
- that Heath actually relied on the appearance that the ER doctor was an agent of the hospital.
The court did not find persuasive Bain’s argument that the hospital’s operation of an ER that was “open for business” was not sufficient to prove that the hospital held out its ER physicians as employees. Likewise, the court rejected Bain’s argument that the hospital’s failure to disclose the ER doctor’s status as an independent contractor resulted in agency by estoppel. The court viewed that argument as an indirect way of asking the court “to hold that a patient may presume that a doctor working in a hospital is an employee unless the patient is told otherwise – a presumption this Court has explicitly rejected.” (Slip Op. at 31.)
Here, Bain “assumed” that the ER doctor was an employee but the hospital did not engage in conduct that led her to that reasonable belief. Although the doctor wore a name badge bearing the hospital name, this was not enough, and even if it was, there was no evidence that Heath, the injured party relied on it. The court found that Bain failed to present substantial evidence of reliance supporting her claim of agency by estoppel, particularly as she testified that the question of whether the ER doctor was a hospital employee “never crossed our minds.” (Slip Op. 33.)
The court expressly declined Bain’s invitation to apply the “new, greatly expanded theory of liability in hospital negligence cases” set out in the Mississippi case of Gatlin v. Methodist Medical Center, 772 So. 2d 1023 (Miss. 2000), which is based primarily on the relationship of the patient with the health care provider, rather than upon the relationship between the hospital and its physicians. The court noted that applying this resulted-oriented theory would require modification of Alabama law or, at the least, creation of a special rule for apparent authority or agency by estoppel cases involving hospitals.
C. Nondelegable duty
Bain finally argued that a nondelegable duty existed in regulations issued by the Alabama State Board of Health or from an express or implied contract between the patient and the hospital. The Court held that the general statements in Regulations 420-5-7-.04(5)(a) and 420-5-7-.04(4), when read together, do not impose a specific duty on a hospital to provide its patients with emergency medical physician services that fall within the applicable standard of care for an emergency room physician and that, instead, each doctor practicing in the hospital is ultimately responsible for medical care rendered to the patients that he or she treats. Likewise, Ala. Admin. Code 420-5-7-.15, entitled “Emergency Services” does not create a nondelegable duty. The hospital owes a different duty to the patient than does the ER physician.
Bain failed “to identify a regulation that imposes a specific duty upon a hospital to provide its patients with emergency medical physician services that are within the applicable standard of care” and thus she failed to demonstrate that the Board’s regulations impose a duty on a hospital to provide ER physician services that are within the applicable standard of care. Further, Bain identified no legislation indicating that the Board has authority to create such a duty. The Alabama Medical Liability Act sets forth the duty that the hospital owes a patient.
The court also rejected Bain’s argument that there was an express or implied contract between the patient and the hospital that imposed upon the hospital the duty to provide the patient with ER services that fall within the applicable standard of care – the hospital paperwork did not contain such language. The duty owed by the hospital is in tort, not in contract.
Finally, the court rejected Bain’s public policy argument for creating a nondelegable duty, stating that public policy arguments are appropriately made to the legislature, not to the court.