Day on Torts
Where the only notification a hospital provided to a patient that a radiologist was not an agent of the hospital was buried in fine print in admission forms and not highlighted in any way, the trial court’s finding that the hospital was vicariously liable for any fault assigned to the radiologist was affirmed.
In Beard v. Branson, No. M2014-01770-COA-R3-CV (Tenn. Ct. App. Nov. 8, 2017), the patient in question had colon surgery at defendant hospital and developed complications. The surgeon ordered a CT scan, which was performed at the hospital and read by Dr. Anderson, “a private radiologist whose practice group was under contract with [the hospital.]” The radiologist reported that the scan showed the “possibility of a mechanical bowel obstruction,” a finding with which the surgeon disagreed. The patient’s condition worsened, and she was eventually flown to another hospital where she died in emergency surgery. Plaintiff filed this HCLA/ wrongful death case against the hospital and surgeon, alleging that the patient “died because of delay in treatment of a bowel perforation she developed as a complication of colon surgery.”
In July 2005, plaintiff’s attorney requested a copy of the CT scan, and the hospital responded that it could not be located. Plaintiff attempted to get the CT scan from the surgeon, the radiology group under contract with the hospital, and the hospital at which the patient ultimately died, but was not provided a copy until three years later. The CT scan revealed that Dr. Anderson “failed to note and report evidence of free air in [patient’s] abdomen, indicative of a bowel perforation.” By the time the CT scan was provided, it was too late to add Dr. Anderson, the radiologist, as a defendant.
To ensure that the hospital would be held vicariously liable for any fault attributed to the radiologist, plaintiff moved for “partial summary judgment on the issue of [the radiologist’s] apparent agency.” The trial court granted the motion, holding that the radiologist was the apparent agent of the hospital and that the hospital was thus vicariously liable for his portion of the fault. After trial, the jury ultimately found for plaintiff, awarding damages of $750,000 and allocating 50% of the fault to the hospital, 10% to the radiologist, and 40% to the surgeon.
This case was first appealed to the Tennessee Supreme Court regarding whether the complaint was timely filed. Once that was resolved in plaintiff’s favor, the Court of Appeals took up this appeal, which addressed whether the trial court incorrectly ruled that the radiologist was the apparent agent of the hospital.
In Boren v. Weeks, 251 S.W.3d 426 (Tenn. 2008), the Tennessee Supreme Court set out a three-party test for agency in regards to a hospital/physician situation:
(1) the hospital held itself out to the public as providing medical services;
(2) the plaintiff looked to the hospital rather than to the individual physician to perform those services; and
(3) the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee.
Here, the hospital admitted factor one, but alleged that the second and third factors had not been met. Defendant hospital relied heavily on the fact that one of the forms that the patient and her husband had signed included language that physicians, including radiologists, were “independent contracts and [were] not agents or employees of the hospital.”
The Court of Appeals first analyzed whether the patient was under the impression “that services [were] provided by the defendant or a servant or employee of the defendant.” The Court noted that “[w]hen the actions or inactions of a hospital create the impression that services are being rendered by the hospital or its servants, a hospital will be deemed to have held itself out as the provider of care unless it gives notice to the patient.” (internal citation omitted). Plaintiff pointed out that in this case, the “radiology department…operated in conjunction with the rest of the hospital;” that the scan was done on hospital premises with hospital “supporting personnel and equipment;” that the patient did not select the radiologist who read the scans, but instead relied on the hospital to provide a radiologist; that the patient never met or spoke with the radiologist; that hospital employees transported the patient to and from the scan and actually performed the scan; that the hospital “maintained the CT scan;” and that the scan report showed the hospital’s name and contact information, with no mention of the radiologist. Based on all of these facts, the Court of Appeals determined that factor two of the agency test was satisfied.
Next, the Court looked at whether the patient’s belief that the hospital was in charge of the CT scan was reasonable, which included whether she had been given meaningful notice that the radiologist was not a hospital agent. Here, the same facts cited above played in plaintiff’s favor, but defendant relied heavily on the disclaimer included in one of the admission forms. The real issue, then, was whether the notice given to plaintiff that the radiologist was not a hospital agent was meaningful.
The notice was contained in the second paragraph of a two-page document, but was part of the second consent form signed by the patient. In total, patient was asked to sign seven pages of consent forms, and the notice was contained therein with no special attention called to it. While some language on the form was in all caps, this portion was not. No one from the hospital specifically pointed this out to plaintiff, as they had no policy of doing so, and plaintiff was not required to initial this portion of the form. In fact, the patient did not even sign this form correctly, as she left the printed name space blank and did not date the form in the provided space. Further, although the patient’s husband also signed the same form, he was illiterate and no one read or explained the form to him. In addition to the factual issues with the form itself, the trial court noted that the form used legal terms that laypeople would likely not understand.
The Court of Appeals ultimately agreed with the trial court that the notice given was not meaningful, and that factor three of the agency test was thus satisfied. The patient was reasonable in believing that the radiology services were being provided by the hospital, and the finding that the radiologist was an apparent agent of the hospital was affirmed.
This was the correct result in this case. As the Court of Appeals noted, “hospitals do not get carte blanche immunity based on consent forms.” Here, there was nothing to call plaintiff’s attention to the independent contractor language, and all of the actions of the hospital and its employees indicated that the CT scan was being done by the hospital. Especially in light of the failure to timely provide a copy of the scan, the Court was right to hold the hospital liable for the radiologist’s fault in this case.