VICARIOUS LIABILITY

Garcia v. Kent, No. B176081 (Cal. App. 2 Dist. Feb. 1, 2007)

In a medical malpractice action, the Court of Appeal of California affirmed a lower court’s judgments of dismissal for non-treating physicians and summary judgment for an administrative service agency (which provided services such as scheduling the surgery, selecting the surgical facility, transportation, and physical therapy) holding that the parties being sued owned no duty of care to the injured patient.

The patient argued that the physician who injured him was an agent of the administrative service agency, thereby making the agency vicariously liable. The court rejected this claim, holding that the agency was not a hospital or medical service provider, and therefore owed no duty of care to the patient. The services provided by the agency simply facilitated the medical services provided by the independent physician and did not establish an implied agency or partnership.

The patient argued that the non-treating physicians, by allowing their names to be listed on the cards and office door of the administrative service agency, implied an agency relationship with the acting physician, which gave rise to a duty of care to warn the patient of the acting physician’s negative past. The court rejected this claim, holding that the acting physician was not a partner of the non-treating physicians or an employee of the agency, which was not a medical group, and was acting independently.