Brown v. St. Vincent's Hosp.

• Court: Alabama Supreme Court
• Writing for the Court: HARWOOD, Justice.
• Citation: Brown v. St. Vincent's Hosp., 899 So.2d 227 (Ala. 2004)
• Decision Date: 08 October 2004
• Parties: Wesley J. BROWN, by his mother and next friend, Stephenie L. BROWN v. ST. VINCENT'S HOSPITAL.

899 So.2d 227

Wesley J. BROWN, by his mother and next friend, Stephenie L. BROWN v. ST. VINCENT'S HOSPITAL.

1021988.

Supreme Court of Alabama.

October 8, 2004.

Thomas O. Plouff of Plouff Law Offices, Birmingham, for appellant.

Crawford S. McGivaren, Jr., and Melanie M. Bass of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee.

HARWOOD, Justice.

Wesley J. Brown, a minor proceeding by and through his mother and next friend, Stephenie L. Brown, in a medical-malpractice action, appeals from a summary judgment entered in favor of one of the defendants, St. Vincent's Hospital. We affirm.

The action was originally brought solely in Ms. Brown's name against Cynthia H. Brown, M.D. ("Dr. Brown"), Sparks & Favor, P.C. (the obstetrical and gynecological group with which Dr. Brown practiced), and St. Vincent's. Through the process of various amendments and stipulations, however, Wesley became the sole plaintiff, asserting, as against St. Vincent's, only the claim that it should be held derivatively liable for the negligence and wantonness he alleged against Dr. Brown. Specifically, he alleged that Dr. Brown was acting "under the apparent authority of" St. Vincent's and that St. Vincent's "held itself out as having a labor and delivery unit for the birthing needs of mothers and their babies and at all relevant times was a healthcare provider that held itself out as providing competent obstetrical care." (Count one of the amended complaint.) The claims against Dr. Brown and Sparks and Favor remain pending, and they are not parties to this appeal.

Wesley alleges that his mother was an obstetrical patient of Dr. Brown's; that Dr. Brown undertook to manage his mother's labor and delivery, as the result of which Wesley was born at St. Vincent's on May 12, 2000; and that Dr. Brown was "guilty of [certain] negligent acts and/or omissions" before and during the delivery, leading to the development of a condition known as "shoulder dystocia" and resulting in permanent nerve damage to Wesley.

After the case had been pending for 10 months and various depositions and other discovery had been completed, St. Vincent's moved for a summary judgment in its favor. In its motion it pointed out, among other things, that Wesley conceded that Dr. Brown was not an actual employee or agent of St. Vincent's and that the facts were such that it was undisputed that Dr. Brown was not "an apparent agent, servant or employee of St. Vincent's." St. Vincent's argued that "the test to be applied is whether the potential principal held the potential agent out to third persons as having the authority to act" and asserted that Ms. Brown could not establish that she had relied on any "holding out" of Dr. Brown by St. Vincent's, particularly in light of the fact that she had signed a consent-for-treatment form upon her admission at the hospital on May 12, 2000, which explained that her doctor and all other doctors providing care to her while she was in the hospital were not the agents, servants, or employees of St. Vincent's but were independent practitioners. In his response to the motion for a summary judgment, Wesley acknowledged that his theory of liability against St. Vincent's was "based upon apparent or implied agency," which issue he stated had been "fully briefed in connection with [his] mother's case before it was voluntarily dismissed." Wesley elaborated:

"[Wesley] asserts two separate bases for establishing the agency relationship between the hospital and Dr. Brown. The first is `apparent authority.' The second basis is `agency by estoppel.' The main difference between the two is that apparent authority does not require any detrimental reliance by the plaintiff.

"The apparent authority theory is based on Section 429 of the Restatement (Second) of Torts (1965), which 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.'

". . . .

"The agency by estoppel theory is based upon Restatement (Second) of Agency § 267 (1958). Section 267 provides:

"`One who represents that another is his servant or agent and thereby causes a third person to justifiably rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.'"

Wesley acknowledged to the court that "[n]either of these Restatement sections have been at issue in an Alabama case," but stated that "there is every reason to believe, from a judicial perspective, that the Alabama Supreme Court would apply these agency theories in a medical malpractice case."

Wesley argued that there were disputed facts concerning whether Dr. Brown was the apparent agent of St. Vincent's, asserting that "[t]he disputed facts are set forth in the affidavit of Stephenie Brown," which he attached as an exhibit to the response. That affidavit, in turn, reads in its entirety as follows:

"1. I, Stephenie Brown, ... had my baby Wesley Brown delivered at St. Vincent's Hospital on May 12, 2000, by Cynthia H. Brown, M.D.

"2. Wesley was my fifth child. All my other children were delivered by Greg Banks, M.D., at Brookwood Hospital in Birmingham, AL.

"3. During my pregnancy I saw a television advertisement by St. Vincent's Hospital that concerned the delivery of obstetrical services in birthing suites at its relatively new Women's and Children's Center. This advertisement led me to believe that the hospital was holding itself out as a hospital that had good obstetricians who provided quality obstetrical services in luxurious birthing suites.

"4. Upon seeing the advertisement, some time in late 1999, I called St. Vincent's Hospital in Birmingham, Alabama, to see if they had any obstetricians who were taking on new patients. I asked the representative of St. Vincent's about this and then I was put on hold. I was then transferred to another person who took my name and number and told me that they would have to call me back with information on an obstetrician. A representative of St. Vincent's then called me at home and gave me Dr. Brown's name, my appointment time, and directed me to Dr. Brown's office in the St. Vincent's professional office building. I was directed to Dr. Brown as an obstetrician from St. Vincent's who was taking on new patients and I was not given a choice of physicians by the St. Vincent's representative.

"5. I first went to see Dr. Brown at the St. Vincent's office building in December 1999. I thought Dr. Brown worked for St. Vincent's.

"6. I relied upon the television advertising (and the statements of the St. Vincent's representatives) in obtaining the obstetrician that the hospital provided to me and I looked to the hospital for providing these obstetrical services for me and my baby. In fact, I continued to see this advertising during my pregnancy and was reassured about the quality of the obstetrical services that St. Vincent's hospital said it provided to expectant mothers.

"7. I never saw any signs at either the St. Vincent's Hospital's professional office building or the birthing suite at St. Vincent's Hospital that suggested in any way that Dr. Brown was not an agent or employee of St. Vincent's Hospital.

"8. I was originally scheduled to be induced on May 11, 2000, and then got a call from the hospital wanting to know if I could come in the next day because all their obstetrical beds were going to be full on May 11th. The representative of St. Vincent's Hospital told me that its obstetrician, Dr. Brown, could induce me on May 12th so I agreed to that date.

"9. I do not recall signing any consent to treatment forms although I am sure that I did consent to treatment on May 12, 2000. When I got into the birthing suit the nurse asked me to undress and get into a gown. I was also asked to take out my contact lenses. After I had undressed the nurse told me that there were some consent forms that I needed to sign. The nurse held the consent forms on a clip board and briefly told me what each form was for and asked me to sign them. The nurse told me that this paperwork was just something that could be gone over very briefly and that the hospital has everybody sign the paperwork and it was no big deal. She definitely did not read the consent forms entirely. At no time did anyone ever go over the paperwork with me. I could not read the consent forms myself because my contacts were taken out. Because I had been told to make my contacts out, I could not see where I was supposed to sign the form. In fact on one form I signed my name in the wrong place and it had to be crossed out.

"10. I am sure that no one ever asked me to acknowledge that Dr. Brown was not an employee or agent of the hospital. If I signed such a form it is because I believed I was consenting to treatment and I surely did not mean to be acknowledging some legal relationship between Dr. Brown and the hospital. From the time that I first saw the advertisement until Wesley was delivered, no one told me that Dr. Brown was not an employee of the hospital.

"11. Had I known that Dr. Brown was not an employee of St. Vincent's Hospital, I would have had Dr. Banks deliver my fifth baby. I went to the physician St. Vincent's directed me to because of the way that St. Vincent's Hospital held itself out in its advertising.

"12. At all times I have believed that Dr. Brown was an employee, agent, and representative of St. Vincent's Hospital who worked for St. Vincent's. When the hospital called me back for the appointment with Dr. Brown they did not give me a choice of another obstetrician. When I told the representative of St. Vincent's

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