Lopez-Krist v. Salvagno (Summary)

VICARIOUS LIABILITY/ ACTUAL AND APPARENT AGENCY

Lopez-Krist v. Salvagno, Civil Action No. ELH-12-01116 (D. Md. Oct. 17, 2013)

The United States District Court for the District of Maryland refused to grant summary judgment for either party in a lawsuit brought by the mother of a patient whose leg was amputated due to the alleged negligence of the orthopedist on call for the emergency department. The mother claimed that the hospital should be held liable since the physician was the actual or apparent agent of the hospital.  The hospital argued that the orthopedic surgeon was an independent contractor member of the medical staff and, in turn, that it could not be held vicariously liable for his negligence.

In considering whether the orthopedist was an actual agent of the hospital, the court considered the contracts and relationships between the two.  It noted that the orthopedist would be considered a “servant” of the hospital if the hospital had sufficient control over the activities of the orthopedist. It looked at the existing contracts between the orthopedic surgeon, his professional association, and the hospital, which dealt with pay-for-call and directorship of the joint replacement program, and noted that the hospital had at least some degree of control over the physician’s practice and his schedule. The court found that whether or not this amounted to actual authority was a question of fact for the jury, which could not be determined at the summary judgment stage of the case.

The district court also denied summary judgment on the issue of apparent authority.  In support of her claim for apparent agency, the mother alleged that the informed consent form was on hospital letterhead and the services of the orthopedic surgeon were provided in the ER, which was located physically within the hospital.  The hospital, on the other hand, argued that the patient was brought to the hospital by the ambulance – not because he chose the hospital specifically.  Accordingly, according to the hospital, the patient and his mother never relied on any representations of agency when choosing a hospital (and, in fact, did not choose the hospital at all).   Noting that the facts were in dispute, the court held that summary judgment would be inappropriate and the issue would need to be decided by a jury.