NEGLIGENCE – HOLDING OUT

Musick v. Dutta, No. 05CA14 (Ohio Ct. App. Mar. 29, 2006)

A patient came to the emergency department suffering from post-surgical complications. The emergency room doctor consulted with a surgeon, who advised that the patient be admitted to the Hospital. The emergency room doctor then asked the patient which of two on-call surgeons at the Hospital the patient wanted to treat him. The patient chose the defendant even though the patient had no prior relationship with that physician. The defendant then performed surgery on the plaintiff. After a post-surgical infection, the patient sued the surgeon and the Hospital for malpractice. The Hospital claimed that it could not be held liable for the surgeon's alleged negligence because the surgeon was an independent contractor and was selected by the patient. The trial court agreed and granted the Hospital's motion for summary judgment. The court of appeals reversed, finding that the patient sought treatment at the Hospital and looked to the Hospital to provide a surgeon. The Hospital's offering of a choice of two on-call surgeons did not mean that the patient looked to a particular doctor for care. For that reason, since a jury could find the Hospital was liable under the agency-by-estoppel doctrine, summary judgment was not appropriate. The Court of Appeals of Ohio then reversed a trial court's entry of summary judgment in favor of the Hospital.