QUESTION:
Our hospital uses consent forms that state certain physicians are independent contractors, not hospital employees.  If a patient signs (or verbally agrees to) those forms, does that fully protect the hospital from being held liable for the physicians’ care?

ANSWER FROM HORTYSPRINGER ATTORNEY FISHER FILIPPAZZO:
This is a great question and one that has come up repeatedly over the years, particularly in the emergency department setting.  As a general rule, independent contractor language in consent forms should be viewed as helpful, but not determinative, when it comes to hospital liability.

For example, as we saw in one of this week’s cases, White v. Iroquois Memorial Hospital, courts will look beyond the consent form to evaluate how care was provided and how the hospital presented the physicians to the patient.  Even where a patient signs or verbally agrees to independent contractor language, hospitals may still face liability if the patient reasonably believed that the hospital itself was providing the care.  This is especially true in emergency situations, where patients may be in pain, under stress, and focused on receiving treatment rather than reviewing consent language.

That recent case also illustrates that consent forms must clearly and specifically notify patients which physicians are independent contractors.  Broad or generalized statements may not be sufficient, and verbal acknowledgment of a form does not necessarily resolve these issues if the patient is not given a meaningful opportunity to understand the relationship between the hospital and the treating physicians.

It is also important to remember that independent contractor disclaimers do not eliminate exposure to direct negligence claims against hospitals.  Even if physicians are properly classified as independent contractors, hospitals may still face claims based on communication failures, care coordination issues, transfer processes, or other system‑level breakdowns.

For these reasons, hospitals should regularly review their consent forms to ensure the independent contractor language is clear, specific, and accurate.  Hospitals should also assess whether their operations, signage, training, and patient‑facing communications are consistent with that language.

If you have a quick question about this or other issues, e‑mail info@hortyspringer.com.