Clark v. Southview Hosp. & Family Health Ctr.

• Decision Date: 16 March 1994
• Docket Number: No. 92-2194,92-2194
• Citation: 68 Ohio St.3d 435,628 N.E.2d 46
• Parties: , 62 USLW 2616, 58 A.L.R.5th 929 CLARK, Admr., Appellant, v. SOUTHVIEW HOSPITAL & FAMILY HEALTH CENTER, Appellee.
• Court: Ohio Supreme Court

Page 435

68 Ohio St.3d 435

628 N.E.2d 46, 62 USLW 2616, 58 A.L.R.5th 929

CLARK, Admr., Appellant, v. SOUTHVIEW HOSPITAL & FAMILY HEALTH CENTER, Appellee.

No. 92-2194

Supreme Court of Ohio.

Submitted Oct. 20, 1993.

Decided March 16, 1994.

SYLLABUS BY THE COURT

A hospital may be held liable under the doctrine of agency by estoppel for the negligence of independent medical practitioners practicing in the hospital when: (1) it holds itself out to the public as a provider of medical services; and (2) in the absence of notice or knowledge to the contrary, the patient looks to the hospital, as opposed to the individual practitioner, to provide competent medical care. (Albain v. Flower Hosp. [1990], 50 Ohio St.3d 251, 553 N.E.2d 1038, paragraph four of the syllabus, overruled.)

At approximately 6:00 a.m. on the morning of August 25, 1986, twenty-six-year-old Kimberly Sierra arrived at the emergency room at appellee Southview Hospital and Family Health Center ("Southview") suffering from an asthma attack. She drove to the hospital with her eighteen-month-old daughter from her house in West Carrollton. The most direct route from Kimberly's house to Southview would have taken her directly past Sycamore Hospital. Kimberly was pronounced dead at 11:16 a.m. that morning at Southview, allegedly as a proximate result of negligent medical care provided by Dr. Thomas Mucci, D.O., the emergency-room physician on duty at Southview.

At that time, Dr. Mucci was president and sole shareholder of TMES, Inc. ("TMES"). Pursuant to an agreement in effect on August 25, 1986 between TMES and Dayton Osteopathic Hospital, d.b.a. Southview, TMES was obligated to provide qualified physicians to staff the emergency department at Southview twenty-four hours per day. The agreement provided that "[t]he relationship between [Southview and TMES] shall be that of independent contractor."

On August 21, 1987, Kimberly's mother, appellant Edna K. Clark, administrator of Kimberly's estate, filed a complaint, later amended, in the Montgomery County Court of Common Pleas, which alleged, in part, the wrongful death of Kimberly as a result of medical negligence on the part of Southview through its agents and/or employees, Dr. Mucci and TMES. It is undisputed that prior to trial, appellant settled her claims against Dr. Mucci and TMES, and dismissed these defendants from the case.

On April 16, 1991, the case proceeded to trial by jury against Southview. During her case-in-chief, appellant testified that on the morning of August 25, 1986, while vacationing in South Carolina, she received a telephone call from her aunt who told her that Kimberly was in the hospital and in critical condition. Although her aunt did not know what hospital Kimberly was in, appellant immediately telephoned the emergency room at Southview because she knew that Kimberly would go there if she had any control of herself at the time. Appellant had told her daughter that if she ever encountered any problems, appellant wanted her to go to Southview because it had doctors on duty there twenty-four hours a day. Prior to August 25, 1986, appellant had been told by the administrative department at Southview that "the hospital had doctors there twenty-four hours a day in their emergency room and [that] they were fully equipped." As a result of this statement, and having read various promotional and marketing materials concerning the services that were available at Southview, appellant believed that the emergency-room physicians at Southview "worked for the hospital [and] were hospital doctors." She told Kimberly "the same thing that I believed [about the physicians] from the first time I was ever in the emergency room at Southview." At no time was appellant informed to the contrary.

The promotional and marketing materials of Southview which were admitted into evidence consisted of various pamphlets, brochures and an "Emergency Handbook & Physician Directory." Also admitted into evidence were various newspaper advertisements and the contents of radio and television advertisements. As relevant here, the promotional literature contains statements such as: "We welcome the opportunity to serve our community in this way, to supplement our full range of inpatient and outpatient medical care"; "You'll find facts about the hospitals' emergency departments"; "Southview * * * feature[s] attractive new emergency department[ ] with the latest technology and equipment [which] can handle all major medical emergencies"; "At * * * Southview's emergency department[ ], we treat whole people, not just diseases and traumatic injuries"; "Get more information about our emergency facilities"; "Paramedics call the emergency department from the scene, and by the time the patient is stabilized and brought to the hospital, the surgical team is ready"; "Southview Hospital[ ] provide[s] the full range of patient care"; and "Our business is your good health, not just the cure of ill health." The promotional literature does not reveal the existence of TMES or the fact that the emergency department at Southview is staffed by independent physicians under a contract.

At the conclusion of appellant's evidence, and again at the close of all the evidence, Southview moved for a directed verdict on the issue of agency by estoppel, which motion the trial court denied.

At the conclusion of the trial, the jury returned a general verdict in favor of appellant in the amount of $1,004,603.94. In its answers to interrogatories, the jury found that Southview had made representations, both directly and indirectly, leading Kimberly to believe that Dr. Mucci was an agent or employee of Southview, and that Kimberly had thereby been induced to rely upon that relationship to seek emergency services at Southview on August 25, 1986. Judgment was entered on the verdict in the amount of $729,603.94, reflecting a setoff of the $275,000 received by appellant in her settlement with Dr. Mucci and TMES.

The court of appeals reversed the judgment of the trial court, finding that a directed verdict should have been granted in Southview's favor, and entered judgment for Southview. The court found in part that reasonable minds could not conclude from the evidence that Dr. Mucci or TMES was an apparent agent of Southview.

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

Stocklin & Simpson Co., L.P.A., Valerie Stocklin and Jay M. Simpson, Dayton, for appellant.

Freund, Freeze & Arnold, Neil F. Freund and Mary E. Lentz, Dayton, for appellee.

Bricker & Eckler, James J. Hughes, Jr., and Catherine M. Ballard, Columbus, urging affirmance for amicus curiae, Ohio Hospital Association.

Wolske & Blue and Michael S. Miller, Columbus, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

ALICE ROBIE RESNICK, Justice.

We must determine whether the trial court should have directed a verdict in favor of Southview on the issue of agency by estoppel.

Civ.R. 50(A)(4) provides that:

"When a motion for a directed verdict has been properly made, the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."

"By the same token, if there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, the motion must be denied." Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115, 4 O.O.3d 243, 244, 363 N.E.2d 367, 368.

Generally, an employer or principal is vicariously liable for the torts of its employees or agents under the doctrine of respondeat superior, but not for the negligence of an independent contractor over whom it retained no right to control the mode and manner of doing the contracted-for work. Councell v. Douglas (1955), 163 Ohio St. 292, 295-296, 56 O.O. 262, 263-264, 126 N.E.2d 597, 599-600.

This issue was addressed in Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 553 N.E.2d 1038. At paragraph four of the syllabus in Albain, this court recognized and adopted the following exception to hospital nonliability for the negligence of independent contractors:

"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."

In attempting to apply Albain to the facts of this case, we find ourselves questioning the very basis of the holding in paragraph four of the syllabus. Concomitantly, we are not unmindful of the doctrine of stare decisis which dictates adherence to judicial decisions. Stare decisis, however, was not intended "to effect a 'petrifying rigidity,' but to assure the justice that flows from certainty and stability. If, instead, adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it." Bing v. Thunig (1957), 2 N.Y.2d 656, 667, 163 N.Y.S.2d 3, 11, 143 N.E.2d 3, 9.

With the foregoing in mind, we now proceed to reconsider the holding in Albain as it is applicable to the instant case. In adopting an agency-by-estoppel exception, we noted in Albain that the majority of jurisdictions which have recognized this type of hospital vicarious liability has done so based on either Section 267 of the Restatement of the Law 2d, Agency (1958...