In a 2012 case, a plaintiff appealed a final judgment that entered a defense verdict for a hospital in her wrongful death case. The case arose when her husband went in for back surgery and died the next day from cardiac arrhythmia. After that, the plaintiff sued the hospital for its own negligence and the negligence of its employees.
The plaintiff named an ER physician as a negligent agent for whose actions the hospital was liable. The plaintiff claimed the hospital was vicariously liable under the respondeat superior doctrine. This doctrine permits a company to be held responsible for its employees that act in the course and scope of employment on the employer’s behalf. The plaintiff also alleged the hospital was responsible for the physician’s conduct because there it had a nondelegable duty to supervise him.
The plaintiff’s expert witness testified in deposition that the doctor had violated is duty by delaying in his response to an emergency situation. The hospital filed a motion for partial summary judgment. It argued that the ER doctor was an independent contractor and therefore it wasn’t liable for him. The trial court granted the partial summary judgment, ruling the doctor did not serve as an actual agent of the hospital. The trial court concluded there was no non-delegable duty to supervise.
The court permitted the plaintiff another opportunity to amend the complaint to try to bring a viable claim not involving a non-delegable duty to supervise. The plaintiff filed another amended complaint, but didn’t allege any new and different theories of liability. The hospital made a motion dismiss the causes of action that assigned blame for the doctor’s negligence to the hospital. The motion was granted. The next amended complaint was allowed to move forward with references to the doctor taken out.
At trial, the plaintiff could not present evidence showing the doctor’s response to the emergency deviated from the standard of care. When the trial was over, the jury found in favor of the hospital. The plaintiff asked for a new trial claiming the defense had made inappropriate comments during closing arguments. The court denied the request.
She appealed, arguing that she should have been permitted to amend the complaint to assert the hospital had a non-delegable duty to supervise the doctor. The appellate court explained a hospital isn’t liable for the negligent acts of a doctor who isn’t its employee, but an independent contractor. However, there are exceptions to the rule of non-liability, such as where the doctor is either an actual or apparent hospital agent. It further explained a hospital could be liable in tort for failing to exercise due care in choosing an independent contractor doctor to put on the hospital staff. Finally, the rule about non-liability does not apply in cases where a duty is non-delegable. This kind of duty arises from statute, regulation or contract.
The appellate court explained the plaintiff was not limited to pleading that the hospital had a duty to diligently determine competent physicians were allowed house or staff privileges. It found that the plaintiff’s theory of a non-delegable duty to supervise fell under a recognized non-delegable duty to offer competent emergency services under an implied contract. It reversed.