THE STATE OF SOUTH CAROLINA
In The Supreme Court
Alethia Simmons, in her
fiduciary capacity as
personal representative
of the estate of P.J.
McBride, deceased, Respondent,
v.
Tuomey Regional
Medical Center, Einar
Anderson, M.D., and
Sandy T. Cooper, M.D. Defendants,
of whom Tuomey
Regional Medical
Center is Petitioner,
and
John H. Cooper, Respondent,
v.
Tuomey Regional
Medical Center,
Coastal Physician
Services of the
Southeast, Inc.,
formerly known as
Coastal Emergency
Services of the
Carolinas, Inc., and
Luis Muniz, M.D. Defendants,
of whom Tuomey
Regional Medical
Center is Petitioner.
p.206
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Sumter County
Howard P. King, Circuit Court Judge
Opinion No. 25143
Heard January 4, 2000 - Filed June 5, 2000
AFFIRMED AS MODIFIED
Harold W. Jacobs of Nexsen Pruet Jacobs & Pollard,
LLP, Columbia, for petitioner.
J. Edward Bell, III, and Eugene C. Fulton, Jr., of Bell
& Moore, P.A., Sumter, for respondents.
William L. Pope of Pope & Rodgers, Columbia, for
amicus curiae, the South Carolina Health Alliance.
WALLER, A.J.: This case presents the novel issue of whether a
hospital owes a common law nondelegable duty to render competent service to
its emergency room patients, such that it may not avoid liability for the
negligent acts of emergency room physicians hired as independent contractors
under a contract between the hospital and a separate corporation.
Alethia Simmons, personal representative for the estate of her
father, P.J. McBride, and John H. Cooper (respondents) brought, unrelated
medical negligence actions against Tuomey Regional Medical Center (Tuomey
Regional) and others. The circuit judge granted Tuomey Regional's summary
judgment motions on the issues 'of actual agency, apparent agency, and
nondelegable duty in both cases. The Court of Appeals reversed, addressing
only the issue of the nondelegable duty. Simmons v. Tuomey Regional Medical
Ctr., 330 S.C. 115, 498 S.E.2d 408 (Ct. App. 1998); Cooper v. Tuomey Regional
p.207
Medical Ctr., Op. No. 98-UP-077 (S.C. Ct. App. filed Feb.17,1998) (unpublished
opinion citing Simmons). We granted Tuomey Regional's petitions for a writ of
certiorari to review the Court of Appeals' decisions. We consolidated the cases
for consideration because they raise the same issue. We affirm as modified the
Court of Appeals' decision to impose a nondelegable duty and reverse the grant
of summary judgment to Tuomey Regional.
FACTS
P.J. McBride received medical care at Tuomey Regional's emergency
room for a head injury he suffered in a moped accident. His daughter, Simmons,
signed a form consenting to treatment at the emergency room that contained a
provision stating, "THE PHYSICIANS PRACTICING IN THIS EMERGENCY
ROOM ARE NOT EMPLOYEES OF TUOMEY REGIONAL MEDICAL
CENTER. THEY ARE INDEPENDENT PHYSICIANS, AS ARE ALL
PHYSICIANS PRACTICING IN THIS HOSPITAL." Simmons said she did not
read the form because she was upset about her father's injuries. She believed
the physicians were Tuomey Regional employees.
The emergency room physicians examined McBride, but released
him without treating a serious head injury that was visible on the back of his
head, Simmons alleged. The physicians apparently believed his confused state
was a result of intoxication. McBride was returned to Tuomey Regional's
emergency room the next day by ambulance after his condition worsened. This
time, physicians diagnosed him as suffering from a subdural hematoma 1 and
transferred him to a Columbia hospital. McBride died about six weeks later of
complications caused by the head injury, Simmons alleged.
Cooper, who had suffered a previous heart attack, experienced chest
pains while driving. A friend drove him to Tuomey Regional's emergency room,
where Cooper informed the receptionist he was having a heart attack and asked
for immediate help. Cooper alleged he sat on a gurney for at least 1 1/2 hours
before seeing a doctor, causing him serious injury. Unlike Simmons, he did not
sign any form containing the "independent physician" statement. He believed
the physicians were Tuomey Regional employees. Both Simmons and Cooper
between the skull and the dura mater, the outer membrane that covers the brain
and spinal cord. 5 Attorney's Dictionary of Medicine, S-344 (1999).
p.208
stated in affidavits they saw no signs or other indications that the physicians,
working in an area that was an integral part of the hospital campus, were not
Tuomey Regional employees.
Tuomey Regional signed a contract with Coastal Physicians
Services, Inc. (Coastal), in 1987. 2 The contract describes Coastal as an
"independent contractor" that provides "independent-contractor physicians" to
work in Tuomey Regional's emergency room on an around-the-clock basis. The
contract provides that, "[e]xcept as hereinafter provided and to the extent
practice and professional conduct of all Hospital's medical staff members are
regulated by the Hospital, the Physicians shall not be under the direction or
supervision of the Hospital in performance of their Emergency Department
duties."
The contract states the physicians are not Tuomey Regional's
employees, and the hospital does not directly pay or provide any benefits to the
physicians. Under a 1989 amendment to the original contract, Tuomey Regional
bills patients and their insurers for emergency room services provided by both
it and Coastal physicians. Tuomey Regional then pays Coastal under a formula
based on the "direct cost" plus a specified amount for each hour Coastal
physicians work in the emergency room. Coastal physicians must maintain their
own liability insurance coverage in minimum amounts.
Coastal physicians must meet many.of the same requirements as
any physician who seeks staff privileges, i.e., the right to admit patients to
Tuomey Regional. Coastal physicians must, for example, apply and qualify for
medical staff privileges in accordance with the bylaws and regulations of the
medical staff. Their professional conduct is governed by Tuomey Regional and
medical staff bylaws and rules, as well as standards set by the Joint Commission
on the Accreditation of Hospitals, applicable statutes, and regulations of
governmental bodies.
Tuomey Regional, however, maintains much more extensive control
over Coastal physicians than physicians who only have staff privileges. For
example, Tuomey Regional selects the emergency room medical director from
confidentiality clause, was not available for public review. The patients'
attorney had to agree not to disclose it before obtaining a copy.
p.209
among the physicians, with the consent of Coastal. Coastal physicians must
remain on Tuomey Regional's premises during their shift, and must provide
services to anyone who desires treatment. Tuomey Regional has the authority
to prevent any physician from working in the emergency room when it "deems
the clinical performance of any Physician . . . to be detrimental to the health or
safety of Hospital's patients." Within five days written notice, Coastal "shall re
assign that Physician from the Hospital and shall not permit him to provide
further services at the Hospital without the Hospital's approval."
Tuomey Regional retains the last word in most disagreements. The
contract provides that "[a]ll matters relating to the Hospital's policies, rules,
regulations, services, and other items of conduct wherein the Physicians may be
involved, shall be determined jointly by [Coastal] and the Hospital's Chief
Executive Officer, and in the event of a disagreement . . . the decision of the
Hospital shall be final."
ISSUE
Did the Court of Appeals err in holding that hospitals
have a nondelegable duty under the common law to
render competent service to the patients of their
emergency rooms?
STANDARD OF REVIEW
A trial court may properly grant a motion for summary judgment
when "the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a
matter of law." Rule 56(c), SCRCP. See also Taper v. Dorchester County, 326
S.C. 318, 487 S.E.2d 187 (1997). In determining whether any triable issues of
fact exist, the court must view the evidence and all reasonable inferences that
may be drawn from the evidence in the light most favorable to the non-moving
party. Manning v. Quinn, 294 S.C. 383, 365 S.E.2d 24 (1988). On appeal from
an order granting summary judgment, the appellate court will review all
ambiguities, conclusions, and inferences arising in and from the evidence in a
light most favorable to the appellant, the non-moving party below. Williams v.
Chesterfield Lumber Co., 267 S.C. 607, 230 S.E.2d 447 (1976).
p.210
The court must determine, as a matter of law, whether the law
recognizes a particular duty. If there is no duty, then the defendant in a
negligence action is entitled to a judgment as a matter of law. See Ellis v. Niles,
324 S.C. 223, 479 S.E.2d 47 (1996); Sharpe v. South Carolina Dep't of Mental
Health, 292 S.C. 11, 16, 354 S.E.2d 778, 781 (Ct. App. 1987) (Bell, J.,
concurring).
DISCUSSION
It is uncontroverted that the role that hospitals play in the delivery
of health care across America has changed dramatically since the days when the
doctrine of charitable immunity shielded hospitals from malpractice liability.
The hospital of the early to mid-nineteenth century
would not be recognizable as such to a modern observer.
"Respectable" people who fell sick or who were injured
were treated by their doctors at home; only the lowest
classes of society sought help in the "hospital," which
was most often a separate wing on the almshouse. As
late as 1873, there were only 178 hospitals in the
United States, with a total of 50,000 beds. These
hospitals were private charities, and their trustees were
usually unable to raise sufficient funding to provide a
pleasant stay. The hospital of the time was dirty,
crowded and full of contagious diseases. The "nurses"
were usually former patients. Doctors, who were not
paid, tended the ill for a few hours per week out of a
sense of charity mixed with the knowledge that they
could "practice" ,their cures on the poor and charge
young medical students for instruction in the healing
arts. These young "house doctors" also worked without
pay, practicing cures on the ill.
Steven R. Owens, Note, 1990 Wis. L. Rev.1129,1131-32 (description drawn from
C. Rosenberg, The Care of Strangers - The Rise of America's Hospital System
(1987)).
Until the 1940s, hospitals were protected from malpractice liability
by the doctrine of charitable immunity. Courts and legislators reasoned that a
p.211
charitable institution should devote its resources to the endeavor at hand and
the greater good, not to reimbursing individuals injured by the institution's
negligent acts. Martin C. McWilliams, Jr. & Hamilton E. Russell, III, Hospital
Liability for Torts of Independent Contractor Physicians, 47 S.C. L. Rev. 431,
434-35 (1996); Kenneth S. Abraham & Paul C. Weiler, Enterprise Medical
Liability and the Evolution of the American Health Care System, 108 Harv. L.
Rev. 381, 385-86 (1994); Owens, supra, 1990 Wis. L. Rev. at 1135-36.
Hospitals and the medical sciences improved . dramatically
throughout the twentieth century, and with those improvements came a
concomitant increase in the importance of hospitals' role in providing medical
care. Today, hospitals compete aggressively in providing the latest medical
technology and the best facilities, as well as in attracting patients and
physicians who will funnel patients to them. Hospitals not only strive to be a
source of pride in the local community, but they also seek to avoid operating at
a financial loss. Regardless of whether they are profit-seeking enterprises, they
are run much like any large corporation and must operate in a fiscally
responsible manner. Like any business dependent upon attracting individual
people as customers, hospitals in the aggregate spend billions to advertise their
facilities and services in a variety of media, from newspapers and billboards to
television and the Internet. Among the many forces that have caused this sea
change are the commercialization of the practice of medicine, the public's
demand for access to modern medical technology, the prevalence and impact of
government-funded programs such as Medicare and Medicaid, and the rise of
managed care in the private sector. See Owens, supra, 1990 Wis. L. Rev. at
1130-35; McWilliams & Russell, supra, 47 S.C. L. Rev. at 432-38; Abraham &
Weiler, supra, 108 Harv. L. Rev. at 382-98.
Acknowledging such changes, this Court limited the doctrine of
charitable immunity in Brown v. Anderson County Hosp. Ass'n, 268 S.C. 479,
234 S.E.2d 873 (1977), holding that a hospital could be held liable when a
plaintiff proved "the injuries occurred because of the hospital's heedlessness and
reckless disregard of the plaintiffs rights." Id. at 487, 234 S.E.2d at 876. Four
years later, the Court abolished charitable immunity in Fitzer v. Greater
Greenville South Carolina Young Men's Christian Ass'n, 277 S.C. 1, 282 S.E.2d
230 (1981). "Public policy," Justice Ness wrote, "is a dynamic not static concept,
and what was valid in the past is not necessarily a valid policy today. Moreover,
when the reason for a declared public policy no longer exists, we should not
hesitate to abolish it and the rules which are supported by the policy." Id. at 3,
p.212
282 S.E.2d at 231. 3
As the Court of Appeals explained in the case before us,
[T]he hospital itself has come to be perceived as the
provider of medical services. According to this view,
patients come to the hospital to be cured, and the
doctors who practice there are the hospital's
instrumentalities, regardless of the nature of the
private arrangements between the hospital and the
physician. Whether or not this perception is accurate
seemingly matters little when weighed against the
momentum of changing public perception and
attendant public policy.
Simmons, 330 S.C. at 121, 498 S.E.2d at 411 (quoting McWilliams & Russell,
supra, 47 S.C. L. Rev. at 473).
It is against this backdrop that we are asked to decide whether the
Court of Appeals properly imposed a common law nondelegable duty on hospitals
with regard to physicians who work in their emergency rooms. Tuomey Regional
presents several arguments explaining why it believes the Court of Appeals
erred.
A. NOT SUPPORTED BY LAW IN SOUTH CAROLINA
Tuomey Regional contends that South Carolina law does not support
the Court of Appeals' "quantum unsubstantiated leap of logic." We disagree.
The term "nondelegable duty" is somewhat misleading. A person
on amounts recoverable from a charitable institution. See Hanvey v. Oconee
Mem'1 Hosp., 308 S.C. 1, 416 S.E.2d 623 (1992): Today, the malpractice liability
of hospitals classified as charitable organizations or as governmental entities
under the state Tort Claims Act is limited by statute. S.C. Code Ann. § 33-56
180 (Supp. 1999) (charitable organizations); S.C. Code Ann. § 15-78-120 (Supp.
1999) (governmental entities).
p.213
may delegate a duty to an independent contractor, but if the independent
contractor breaches that duty by acting negligently or improperly, the delegating
person remains liable for that breach. It actually is the liability, not the duty,
that is not delegable. The party which owes the nondelegable duty is vicariously
liable for negligent acts of the independent contractor. Simmons, 330 S.C. at
123, 498 S.E.2d at 412; see also F. Patrick Hubbard & Robert L. Felix, The South
Carolina Law of Torts 654 (1997).
This Court and the Court of Appeals have applied the nondelegable
duty doctrine in several situations. An employer has a nondelegable duty to
employees to provide a reasonably safe work place and suitable tools, and
remains vicariously liable for injuries caused by unsafe activities or tools under
the employer's control. 4 A landlord who undertakes repair of his property by use
of a contractor has a nondelegable duty to see that the repair is done properly,
and remains vicariously liable for injuries caused by improper repairs.5
A common carrier has a nondelegable duty to ensure that cargo is
properly loaded and secured, and remains vicariously liable for injuries caused
by an unsecured load. 6 A bail bondsman has a nondelegable duty to supervise
general rule, but finding employee injured by car jack had no cause of action
because he was in complete charge and had not even asked for different
equipment); Jackson v. Powe, 241 S.C. 35, 39, 126 S.E.2d 841, 842-43 (1962)
(citing general rule, but finding no evidence in record that employer's negligence
led to injury caused by falling cotton bale); Wesley v. Holly Hill Lumber Co., 211
S.C. 40, 48, 43 S.E.2d 619, 622 (1947) (citing general rule and upholding
submission of employer's negligence to jury where plaintiff was injured by
logging cable).
5 Conner v. Farmers and Merchants Bank, 243 S.C. 132, 139-40, 132
S.E.2d 385, 388-89 (1963) (upholding jury verdict against landlord for elderly
tenant who fell on brick floor negligently repaired by contractor); Durkin v.
Hansen, 313 S.C. 343, 437 S.E.2d 550 (Ct. App. 1993) (reversing grant of
summary judgment to landlord where tenant slipped and fell on floor left wet by
contractor hired by landlord to clean floors).
6 Jenkins v. E.L. Long Motor Lines, Inc.., 233 S.C. 87, 95-100, 103 S.E.2d
523, 527-29 (1958) (upholding jury verdict against common carrier where (6 continued...)
p.214
the work of his employees, and remains vicariously liable for injuries caused by
those employees.7 A municipality has a nondelegable duty to provide safe streets
even when maintenance is undertaken by the state Highway Department, and
remains vicariously liable for injuries caused by defective repairs. 8
Tuomey Regional mentions some of the above cases and argues they
are distinguishable because in this case it is the independent-contractor
physician - not the hospital - who controls a patient's medical treatment.
Tuomey Regional also contends regulations promulgated by the state
Department of Health and Environmental Control do not impose such a duty. 9
We find Tuomey Regional's arguments unpersuasive. The cited
cases clearly illustrate that a person or entity entrusted with important duties
in certain circumstances may not assign those duties to someone else and then
expect to walk away unscathed when things go wrong. A principle that applies
in cases of poorly repaired brick floors and sloppily loaded cargo certainly applies
to situations in which people must entrust that most personal of things, their
physical well-being, to physicians at an emergency room intimately connected
with and closely controlled by a hospital. However, as explained further below,
we do not believe it is necessary, as the Court of Appeals did, to impose an
plaintiff).
7 Carson v. Vance, 326 S.C. 543, 550, 485 S.E.2d 126, 130 (Ct. App. 1997)
(bail bondsman has nondelegable duty under statute requiring him to supervise
employees' actions; thus, trial court properly considered employee's actions in
foreign state in determining whether minimum contacts existed to confer
jurisdiction over South Carolina bail bondsman in foreign court).
8 Dolan v. City of Camden, 233 S.C. 1, 103 S.E.2d 328 (1958)
(municipalities, which have full and complete control over streets and highways
within their corporate limits, are liable for injuries caused by failure to use
reasonable care to keep them in a reasonably safe condition for public travel).
9 24A S.C.Code Ann. Regs. 61-16 § 613. (1992) (requiring hospitals to
maintain certain minimum standards and equipment to provide emergency care
and services, including around-the-clock access to x-ray and routine laboratory
services and a licensed physician).
p.215
absolute nondelegable duty on hospitals.
B. NOT SUPPORTED BY LAW IN OTHER JURISDICTIONS
Tuomey Regional contends that the law of other jurisdictions does
not support the Court of Appeals' decision. We disagree.
Alaska, Florida, and New York courts have applied the nondelegable
duty doctrine to care provided by a hospital's emergency room physicians. See
Jackson v. Power, 743 P.2d 1376, 1385 (Alaska 1987) (holding that a general
acute care hospital may not delegate its duty to provide physicians for
emergency room care because the law imposes a duty on hospital to provide that
health care); superseded in part by Alaska Stat. § 09.65.096 (2000); Irving v.
Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55, 59 (Fla. Dist. Ct. App. 1982)
(holding that jury should have been instructed on nondelegable duty doctrine,
as well as apparent agency doctrine, when patient alleges malpractice by
emergency room physician); Martell v. St. Charles Hosp., 523 N.Y.S.2d 342, 352
(N.Y. Sup. Ct. 1987) (suggesting New York would hold hospitals liable for the
malpractice of independent emergency room physicians under the nondelegable
duty doctrine).
In contrast, Texas and Missouri courts have rejected the
nondelegable duty doctrine in connection with care provided by emergency room
physicians. Baptist Mem'l Hosp. System v. Sampson, 969 S.W.2d 945, 949 (Tex.
1998) (finding it unnecessary to adopt nondelegable duty doctrine for
malpractice by emergency room physicians because the patient may sue the
negligent physician, and sue the hospital for violation of any duties owed directly
to patients); Kelly v. St. Luke's Hospital of Kansas City, 826 S.W.2d 391(Mo. Ct.
App. 1992) (declining to apply nondelegable duty because it was not in statutes
or regulations, and practice of medicine in emergency room is not an inherently
dangerous activity); see also Estates of Milliron v. Francke, 793 P.2d 824, 827
(Mont. 1990) (refusing to apply nondelegable duty doctrine to hold hospital liable
for the negligent acts of a radiologist, an independent contractor).
While few courts have adopted the nondelegable duty doctrine,
numerous courts have endorsed the doctrine of apparent authority or apparent
agency to hold hospitals liable when an injured patient proves a physician was
p.216
the hospital's apparent agent. 10 Although it found it unnecessary to address it
in the present cases, the Court of Appeals has sanctioned the use of the apparent
agency doctrine in this setting. See Strickland v. Madden, 323 S.C. 63, 70-71,
448 S.E.2d 581, 585 (Ct. App. 1994) (hospital may be vicariously liable for
negligent health care rendered by a physician who is not an employee of the
hospital under doctrine of apparent agency; but plaintiff failed to show apparent
agency where doctor was a private practitioner whose only connection to hospital
was that he had staff privileges to admit patients); Shuler v. Tuomey Regional
Medical Ctr., 313 S.C. 225, 437 S.E.2d 128 (Ct. App. 1993) (discussing apparent
agency in negligence action against emergency room physician and hospital, but
concluding plaintiff did not demonstrate the physician was an apparent agent
of hospital).
Under the apparent agency doctrine, the injured patient must
establish that (1) the hospital consciously or impliedly represented the physician
to be its agent, (2) the patient relied upon the representation, and (3) the patient
changed his position to his detriment in reliance on the representation. See
Strickland v. Madden, 323 S.C. at 70, 448 S.E.2d at 585; Watkins v. Mobil Oil
Corp., 291 S.C. 62, 67, 352 S.E.2d 284 (Ct. App. 1986) (citing Restatement
(Second) of Agency § 267 (1958)). The focus is on the acts and conduct of the
principal, not the agent. Frasier v. Palmetto Homes of Florence. Inc., 323 S.C.
240, 473 S.E.2d 865 (Ct. App. 1996); see also Hubbard & Felix at 647-48, 652-56
(discussing apparent agency and nondelegable duties).
An instructive example of a court grappling with a case like those
we are presented with today, and ultimately adopting an expanded theory of
may be held liable for negligence of emergency room physicians under apparent
agency doctrine); Gilbert v. Sycamore Mun. Hosp., 622 N.E.2d 788, 794-96 (Ill.
1993) (joining the many jurisdictions adopting the apparent agency doctrine and
listing cases); Pamperin v. Trinity Mem'l Hos., 423 N.W.2d 848, 856-58 (Wis.
1988) (applying the apparent agency doctrine where a radiologist misread the
x-ray of an emergency room patient, and listing cases); see also Adkins v. Hunt,
490 S.E.2d 806, 810-11 (W. Va. 1997) (declining to decide whether to adopt
nondelegable duty doctrine in connection with emergency room physicians, and
explaining that court in previous case already had held that a hospital may be
liable for negligent acts of emergency room doctors not directly employed by
hospital under the doctrine of agency by estoppel).
p.217
apparent agency, is found in three Ohio cases.
In 1987, the Ohio Court of Appeals held that a hospital has a
nondelegable duty to its emergency room patients that is not affected by the
hospital's contract with an independent-contractor physicians group. Griffin v.
Matthews, 522 N.E.2d 1100 (Ohio Ct. App. 1987). Three years later, the Ohio
Supreme Court held that a hospital does not have a nondelegable duty to assure
the absence of negligence in the care provided by private, independent
physicians granted staff privileges. Albain v. Flower Hosp., 553 N.E.2d 1038
(Ohio 1990). The Albain court found Griffin, which dealt with emergency room
physicians, inapplicable. The court did not explicitly overrule Griffin, but
questioned its validity by describing it as a "misdirected attempt to circumvent
the necessity of proving agency by estoppel." Albain, 553 N.E.2d at 1047.
A mere four years later, a divided Ohio Supreme Court rejected the
narrowly drawn apparent agency theory it had set out in Albain. Clark v.
SouthView Hosp., 628 N.E.2d 46 (Ohio 1994). In Clark, the administrator of the
decedent's estate alleged that emergency room physicians committed malpractice
in the death of a woman who suffered an asthma attack. The 26-year-old
woman, who had suffered previous attacks, chose to drive to the defendant
hospital. Apparently impressed by the hospital's advertising, its reputation, and
her mother's belief it was the destination of choice in an emergency, the woman
(with her 18-month-old daughter) had driven past another hospital's emergency
room en route to the defendant hospital.
The Clark court comprehensively explained the shortcomings of its
analysis and the narrow view expressed in Albain. The court described how
hospitals have changed from places where physicians essentially experimented
upon people too poor to summon a physician to their home to places that employ
highly trained medical staffs, expensive technology, and public relations experts
to parlay public confidence into paying patients. The Clark court adopted a
broader theory that we believe ultimately will be followed by the many other
courts using the apparent agency approach in this setting:
A hospital may be held liable under the doctrine of
agency by estoppel for the negligence of independent
medical practitioners practicing in the hospital if it
holds itself out to the public as a provider of medical
services and in the absence of notice or knowledge to
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the contrary, the patient looks to the hospital, as
opposed to the individual practitioner, to provide
competent medical care ....
As to notice to the plaintiff that care is being provided
by independent medical practitioners, we stress that
such notice, to be effective, must come at a meaningful
time.
Clark, 628 N.E.2d at 53-54. The court went on to reject suggestions that a
hospital could insulate itself from liability by giving notice to patients through
consent forms signed upon admission or signs posted in the emergency room. Id.
at 54 n.1.
In sum, our decision is amply supported by law in other
jurisdictions. Courts throughout the nation have struggled with this issue, and
nearly all have held hospitals liable under one or more theories. The Ohio cases
illustrate what we perceive to be the likely trend among the many courts that
have adopted an apparent agency theory in these cases. Under that trend,
hospitals will not be allowed to escape liability by giving last-minute notice of
independent-contractor practitioners through admission forms or emergency
room signs. The result is that hospitals may be held liable for the malpractice
of their emergency room physicians, regardless of whether it is through a theory
of apparent agency or nondelegable duty.
We also conclude it is appropriate to find a nondelegable duty in this
case because apparent agency in its traditional form requires a representation
by the principal (the hospital) and proof of reliance on that representation by the
patient. See Strickland v. Madden, supra. Most courts applying the apparent
agency doctrine in the emergency room setting have relaxed those requirements
substantially in order to hold the hospital liable, a decision criticized by some
commentators. See Jackson v. Power, 743 P.2d at 1382 n.10 (listing cases and
agreeing with "the weight of authority that application of apparent authority in
the hospital/emergency room physician situation does not require an express
representation to the patient that the treating physician is an employee of the
hospital. Nor is direct testimony as to reliance required absent evidence that the
patient knew or should have known that the treating physician was not a
hospital employee when the treatment was rendered"); McWilliams & Russell,
supra, 47 S.C. L. Rev. at 448-52 (asserting that courts, confronted with the tide
p.219
of changing public perception of hospitals, have employed the apparent agency
doctrine without rigor in emergency room setting).
The point often made in the cases and commentary, either implicitly
or explicitly, is that expecting a patient in an emergency situation to debate or
comprehend the meaning and extent of any representations by the hospital -
which likely would be based on an opinion gradually formed over the years and
not on any single representation - imposes an unfair and improper burden on
the patient. Consequently, we believe the better solution, grounded primarily
in public policy reasons we explain below, is to impose a nondelegable duty on
hospitals.
C. NOT SUPPORTED BY PUBLIC POLICY
Tuomey Regional asserts that no public policy considerations
support the Court of Appeals' conclusion. First, Tuomey Regional argues the
duty is unnecessary because physicians must carry professional liability
insurance, making judgments collectible. Second, holding hospitals liable will
not improve care because hospitals may not practice medicine. Third, patients
do not care whether a physician is a hospital employee or independent
contractor, and no one in need of medical care decides where to go based upon
the relationship of the physicians with the hospital. Finally, Tuomey Regional
argues that the adoption of the nondelegable duty doctrine in this setting is a
decision for the Legislature to make, not the courts. We disagree.
Commentators have debated whether compensation is a goal of tort
law, or simply a means by which other goals are accomplished. See Hubbard &
Felix at 1-26 (discussing policies of tort law). Regardless, Tuomey Regional's
focus on the availability of compensation misses another important aspect of tort
law: the desire to give parties with crucial duties a keen incentive to do
everything possible to avoid violating those duties. "Immunity fosters neglect
and irresponsibility, while liability encourages the exercise of due care." Brown
v. Anderson Count Hosp. Ass'n, 268 S.C. at 487, 234 S.E.2d at 877; see also
Hubbard & Felix at 6-10, 638-40 (discussing theory of rational avoidance of
liability and policy bases for vicarious liability). Imposing a nondelegable duty
on hospitals in this context fulfills both goals.
We reject Tuomey Regional's insistence that "hospitals may not
practice medicine" - a point it has asserted throughout this litigation. It is true
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that a hospital may not decide that Patient X is to receive a dose of a particular
medication twice a day; nor may a hospital order that Patient Y undergo
specified tests at 2 p.m. on a particular day. Only licensed physicians may make
such decisions. But the "practice of medicine" encompasses a much broader
range of actions than those specific directives. It includes innumerable decisions
regarding the type and quality of medical equipment, staffing levels, and the
renovation or addition of facilities. Hospital and emergency room administrators
make countless decisions that intimately affect the "practice of medicine" all day,
every day. The contract between Tuomey Regional and Coastal in the present
cases illustrates how the hospital, in ways both obvious and subtle, affects and
controls the practice of medicine. See Jeannie Pinkston, Note, 48 Okla. L. Rev.
797, 804 (1995) (stating the oft-quoted adage that "hospitals don't practice
medicine, physicians do" no longer reflects public perception of a modern
hospital, which has assumed the role of a profit-producing business and
aggressively markets itself as an administrator and provider of comprehensive
health care).
Furthermore, we disagree with Tuomey Regional's assertion that
patients do not decide where to seek care based on the relationship between a
hospital and its physicians. While an emergency room may be selected because
it is the nearest one, patients in urban areas often may choose from several.
Patients make those decisions based primarily on the reputation of the hospital,
which it often has aggressively promoted, and not on the reputation of individual
emergency room physicians. In such situations, patients understandably and
correctly expect to be cared for by physicians and other staff members carefully
selected and approved by the hospital.
We reject Tuomey Regional's contention that this decision should be
left to the Legislature. Courts created, then eliminated, charitable immunity for
hospitals. The same policy considerations at work in those cases make it proper
for the courts to impose this nondelegable duty on hospitals. Cf. Brown v.
Anderson County Hosp. Ass'n, 268 S.C. at 485-86, 234 S.E.2d at 876 (rejecting
argument that Court should leave any changes in charitable immunity doctrine
to Legislature because courts created it and it had become inconsistent with
legislative and judicial policy in tort law).
We conclude the Court of Appeals properly outlined and applied the
public policy considerations in question. Our decision, like those made by other
courts that have considered this issue and held hospitals liable under one or
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more theories, is grounded primarily in those considerations. Given the
fundamental shift in the role that a hospital plays in our health care system, the
commercialization of American medicine, and the public perception of the unity
of a hospital and its emergency room, we hold that a hospital owes a
nondelegable duty to render competent service to its emergency room patients.
However, we conclude it is not necessary, as the Court of Appeals did
in the cases at hand, to impose an absolute nondelegable duty on hospitals.
Instead, we adopt the approach expressed in Restatement (Second) of Torts:
Employers of Contractors § 429 (1965). That section, sometimes described as
ostensible agency, provides:
One who employs an independent contractor to perform
services for another which are accepted in the
reasonable belief that the services are being rendered
by the employer or by his servants, is subject to liability
for physical harm caused by the negligence of the
contractor in supplying such services, to the same
extent as though the employer were supplying them
himself or by his servants.
Section 429 applies not only when the injured person accepts
services in the belief they are being rendered by the independent contractor's
employer, but also when a third person accepts such services on the injured
person's behalf and reasonably believes the services are being rendered to the
injured person by the independent contractor's employer. See section 429 cmt.
a; Restatement (Second) of Torts, Introductory Note to §§ 416-429 at p.394
(explaining that various nondelegable duties are imposed "in situations in which,
for reasons of policy, the employer is not permitted to shift the responsibility for
the proper conduct of the work to the contractor").
Under section 429, the plaintiff must show that (1) the hospital held
itself out to the public by offering to provide services; (2) the plaintiff looked to
the hospital, rather than the individual physician, for care; and (3) a person in
similar circumstances reasonably would have believed that the physician who
treated him or her was a hospital employee. When the plaintiff does so, the
hospital will be held vicariously liable for any negligent or wrongful acts
committed by the treating physician. The hospital may attempt to avoid liability
for the physician's acts by demonstrating the plaintiff failed to prove these
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factors.
Numerous courts have relied on section 429 in decisions allowing a
plaintiff to attempt to hold a hospital vicariously liable for a purportedly
independent physician's negligent acts. E.g., Walker v. Winchester Mem'1 Hosp. ,
585 F. Supp. 1328, 1330 (W.D. Va. 1984); Stewart v. Midani, 525 F. Supp. 843,
851 (N.D. Ga. 1981); Jackson v. Power, 743 P.2d at 1380; Richmond County
Hosp. Auth. v. Brown, 361 S.E.2d 164,166 (Ga. 1987); Gilbert v. Sycamore Mun.
Hosp., 622 N.E.2d 788, 795 (Ill. 1993); Sharsmith v. Hill, 764 P.2d 667, 672
(Wyo. 1988); Irving v. Doctors Hosp. of Lake Worth Inc., 415 So.2d 55, 60 (Fla.
Dist. Ct. App. 1982); Arthur v. St. Peters Hosp., 405 A.2d 443, 446-47 (ICJ.
Super. Ct. Law Div. 1979); Mduba v. Benedictine Hosp., 384 N.Y.S.2d 527, 529
(ICY. App. Div. 1976); Smith v. St. Francis Hosp., 676 P.2d 279, 282 (Okla. Ct.
App. 1983); Capan v. Divine Providence Hosp., 430 A.2d 647, 648-650 (Pa. Super.
Ct. 1980).
Although the present cases involve emergency room physicians, our
decision is not necessarily limited to such physicians. It is limited, however, to
those situations in which a patient seeks services at the hospital as an
institution, and is treated by a physician who reasonably appears to be a
hospital employee. Our holding does not extend to situations in which the
patient is treated in an emergency room by the patient's own physician after
arranging to meet the physician there. Nor does our holding encompass
situations in which a patient is admitted to a hospital by a private, independent
physician whose only connection to a particular hospital is that he or she has
staff privileges to admit patients to the hospital. Such patients could not
reasonably believe his or her physician is a hospital employee. See Ward v.
Lutheran Hosps. & Homes Soc. of America Inc, 963 P.2d 1031 (Alaska 1998)
(reaffirming Jackson, supra, and holding that hospital was not liable under
nondelegable duty or apparent agency doctrines for allegedly negligent acts of
private, independent physicians who had staff privileges to treat their patients
at hospital); Menzie v. Windham Comm. Mem'1 Hosp, 774 F. Supp. 91 (D. Conn.
1991); Jackson, 743 P.2d at 1385; Richmond County Hosp. Auth., 361 S.E.2d at
166.
Viewed in the light most favorable to respondents, the record in the
present cases shows that they may allege that they or their relative sought care
at Tuomey Regional's emergency room based on the hospital's offering of services
to the public, that they looked to the hospital to provide the care, not an
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individual physician, and that they were treated by physicians who reasonably
appeared to be hospital employees. Genuine issues of material fact exist;
therefore, summary judgment is not appropriate.
CONCLUSION
For the foregoing reasons, we affirm as modified the Court of
Appeals' decision to impose a nondelegable duty on hospitals with regard to the
physicians who practice in their emergency rooms. We adopt the Restatement
of Torts (Second) § 429 instead of imposing an absolute duty on hospitals. In
both respondents' cases, we reverse the grant of summary judgment to Tuomey
Regional on the ground of nondelegable duty.
The Court of Appeals found that its decision on the nondelegable
duty issue rendered the issue of apparent agency moot. Simmons, 330 S.C. at
118 n.l, 498 S.E.2d at 409 n.l. Respondents in their brief to this Court assert
the Court of Appeals' reversal of summary judgment includes a reversal of the
trial judge's ruling on the apparent agency cause of action. Respondents urge
this Court to affirm the reversal of summary judgment on the ground of
apparent agency. Tuomey Regional, apparently believing the Court of Appeals
did not rule on the apparent agency issue, contends there is no reason to remand
the case to the Court of Appeals for further consideration because the apparent
agency issue is without merit.
We could remand the apparent agency issue to the Court of Appeals
for its consideration and ordinarily would find that an appropriate disposition.
However, we conclude it is unnecessary to remand this case to the Court of
Appeals because the parties have raised both issues to us on the merits and
because the analyses of apparent agency and nondelegable duty are so closely
intertwined in this instance. Although closely related, each is a viable theory an
injured patient may assert. Accordingly, we also reverse the grant of summary
judgment to Tuomey Regional on the ground of apparent agency in both
respondents' cases.
We remand respondents' cases to circuit court for further
proceedings consistent with this opinion.
AFFIRMED AS MODIFIED.
TEL, A.C.J., MOORE and BURNT, JJ., and Acting Justice George
T. Gregory, Jr., concur.
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