Albain v. Flower Hosp.

• Decision Date: 25 April 1990
• Docket Number: No. 88-2208,88-2208
• Citation: 50 Ohio St.3d 251,553 N.E.2d 1038
• Parties: , 3 A.L.R.5th 1006 ALBAIN, Administratrix, et al., Appellees, v. FLOWER HOSPITAL, Appellant.
• Court: Ohio Supreme Court

Page 251

50 Ohio St.3d 251

553 N.E.2d 1038, 3 A.L.R.5th 1006

ALBAIN, Administratrix, et al., Appellees, v. FLOWER HOSPITAL, Appellant.

No. 88-2208.

Supreme Court of Ohio.

Submitted Jan. 16, 1990.

Decided April 25, 1990.

Syllabus by the Court

1. A hospital's granting of staff privileges to an independent private physician, which the hospital may later revoke under its review procedures, does not establish the requisite level of authority or control over such physician to justify imposing liability against the hospital under the doctrine of respondeat superior. (Hannola v. Lakewood [1980], 68 Ohio App.2d 61, 67-69, 22 O.O.3d 63, 66-68, 426 N.E.2d 1187, 1191-1192, insofar as it is inconsistent with this opinion, is hereby disapproved.)

2. In regard to staff privileges, a hospital has a direct duty to grant and to continue such privileges only to competent physicians. A hospital is not an insurer of the skills of private physicians to whom staff privileges have been granted. In order to recover for a breach of this duty, a plaintiff injured by the negligence of a staff physician must demonstrate that but for the lack of care in the selection or the retention of the physician, the physician would not have been granted staff privileges, and the plaintiff would not have been injured.

3. Hospitals do not have a nondelegable duty to assure the absence of negligence in the medical care provided by private independent physicians granted staff privileges by the hospital.

4. A hospital may, in narrowly defined situations, under the doctrine of agency by estoppel, be held liable for the negligent acts of a physician to whom it has granted staff privileges. In order to establish such liability, a plaintiff must show that: (1) the hospital made representations leading the plaintiff to believe that the negligent physician was operating as an agent under the hospital's authority, and (2) the plaintiff was thereby induced to rely upon the ostensible agency relationship.

5. An integral part of the duty of hospital employees to follow the orders of an attending physician is the duty to keep the attending physician informed of the patient's condition so as to permit the physician to make a proper diagnosis and treatment of the patient. In order to recover from the hospital for a breach of its employees' duty in this regard, a plaintiff must demonstrate that such breach was the proximate cause of the patient's injury.

On April 18, 1984, seventeen-year-old Sharon Albain, who was eight months pregnant, was visiting a friend's home in Sylvania, Ohio. At approximately 1:30 p.m., she began discharging blood vaginally. Paramedics were called and they transported Sharon to the nearest hospital, appellant Flower Hospital. Arriving at approximately 2:00 p.m., Sharon was admitted to the obstetrical ward of the hospital. Sharon's family practice physician, Dr. John Crayne, was telephoned by Dr. Thomas Billings, the hospital resident on duty at the time. Dr. Crayne did not have staff privileges at Flower Hospital, and it was agreed that Sharon's care would be turned over to the on-call obstetrician.

Dr. Billings returned to Sharon, apparently told her that her doctor had been called, and then briefly examined her. At approximately 2:30 p.m., Dr. Billings telephoned Dr. Samira Abbo, the on-call staff obstetrician, and informed her of Sharon's condition. Dr. Abbo, who was seeing patients in her office that afternoon, gave some orders for Sharon's care.

Dr. Abbo was telephoned again at 3:50 p.m. by the on-duty obstetrical nurse, Anita Graves, R.N., who updated Dr. Abbo on Sharon's condition. Dr. Abbo, relying on the information given her by Graves--which indicated that the vital signs, blood pressure, CBC's, fetal heart tones and the ultrasound results were all normal ¹--told Graves that she would be in to evaluate Sharon at 5:30 p.m., after her office hours were over. Graves monitored Sharon's condition for the next several hours.

Dr. Abbo finished her office hours at approximately 6:00 p.m. and went home to eat something before going to the hospital. At 7:00 p.m., Graves telephoned Dr. Abbo at home, stating she had been expected since 5:30. Dr. Abbo ordered another blood test, and then left for the hospital. She examined Sharon at approximately 8:00 p.m. Dr. Abbo then consulted with Dr. Crayne and decided to transfer Sharon to Riverside Hospital in Toledo, which had a neonatologist on staff who could care for a pre-term baby.

Sharon was transferred by ambulance to Riverside Hospital accompanied by a Flower Hospital nurse, and was admitted after 9:30 p.m. Dr. Crayne arrived and examined Sharon, and contacted Dr. Christopher Marlowe, the staff obstetrician. Dr. Marlowe examined Mrs. Albain and concluded that a possible abruptio placentae ² had occurred. He delivered the baby, Jonathan Albain, by cesarean section at 11:49 p.m. The infant suffered from complications of neonatal asphyxia, and died on June 17, 1984.

On March 29, 1985, Sharon and her husband filed a complaint setting forth wrongful death and survivorship claims against Flower Hospital, Riverside Hospital and Drs. Abbo, Crayne and Marlowe. They alleged, inter alia, that "the Defendants, Flower Hospital and Samira Abbo, M.D., either jointly, severally or concurrently, acting individually or through their agents and employees failed to properly monitor the Plaintiff's condition and failed to properly diagnose Plaintiff's condition of fetal distress and further failing to prescribe proper diagnostic measures to determine Plaintiff's fetal distress. Further, Plaintiffs state that Flower Hospital and Samira Abbo, M.D. delayed in the performance of a cesarean section when the procedure was indicated; and failed to diagnose the condition of placenta previa and/or placenta abruptio and consequently the delay and failure in properly attending to such conditions."

The arbitration panel granted a directed verdict in favor of defendants Riverside Hospital and Dr. Marlowe. Following a hearing, the panel found in favor of the remaining defendants.

The Albains rejected the arbitration decision and filed an amended complaint in the common pleas court on March 25, 1987. Flower Hospital and Dr. Crayne filed separate motions for summary judgment, which the trial court granted on August 12, 1987. The case against Dr. Abbo remains pending in the trial court.

The court of appeals reversed in part, finding genuine issues of material fact existed as to whether the hospital breached an independent, corporate duty of care owed directly to its patients, as well as to whether an agency relationship existed between Dr. Abbo and Flower Hospital. The court affirmed the grant of summary judgment in favor of Dr. Crayne. ³

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Leizerman, McGill & Williams and E.J. Leizerman, Toledo, for appellees.

Robison, Curphey & O'Connell and E. Thomas Maguire, Toledo, for appellant.

Bricker & Eckler, James J. Hughes, Jr., and Jeanne M. Martoglio, Columbus, urging reversal on behalf of amicus curiae, Ohio Hospital Ass'n.

HOLMES, Justice.

This case presents us with two issues concerning the liability of a hospital for alleged negligent conduct by physicians with staff privileges and other professionals caring for patients on its premises. First, we are asked to determine whether, and under what circumstances, a hospital may be liable for the negligence of the physicians to which it has granted staff privileges (and who are frequently referred to as "staff physicians"). For the reasons discussed in Part I, we reject appellees' theory of so-called corporate negligence and hold that a hospital's liability must be determined by application of established rules of agency and tort law. In the present case, we hold that Dr. Abbo was in fact an independent contractor properly retained by appellant hospital, and, inasmuch as appellees failed to establish an ostensible agency relationship between the hospital and Dr. Abbo, the hospital may not be held vicariously liable for Dr. Abbo's alleged negligence.

Second, we are asked to determine whether a hospital may be held vicariously liable for its employees' alleged failure to keep an attending physician fully informed of a patient's condition. For the reasons discussed in Part II of this opinion, we answer such query in the affirmative. However, we also hold that the trial court correctly granted summary judgment in favor of appellant on this issue, and thus we reverse the judgment of the court of appeals.

Our review in this case is governed by the standard for granting a motion for summary judgment:

"Civ.R. 56(C) specifically provides that before summary judgment may be granted, it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117, 522 N.E.2d 489, 505.

I

A

It is a fundamental maxim of law that a person cannot be held liable other than derivatively, for another's negligence. In an employment setting such as is before this court today, the most common form of derivative or vicarious liability is that imposed by the law of agency, through the doctrine of respondeat superior.

"The fundamental rule generally recognized is that the doctrine of respondeat superior is applicable to the relation of master and servant or of principal and agent, but not to that of employer and independent contractor * * *

"The relation of principal and agent or master and...