Eads v. Borman

Citation234 Or. App. 324,227 P.3d 826
Decision Date17 March 2010
Docket Number05C18610,A137410.
PartiesDavid EADS and Diane Eads, individually and as husband and wife, Plaintiffs-Appellants, v. Timothy R. BORMAN, D.O.; Salem Hospital, a registered Oregon non-profit corporation; Michael J. George, M.D.; and Salem Radiology Consultants, P.C., an Oregon Professional Corporation, Defendants, and Willamette Spine Center, LLC, an Oregon corporation, Defendant-Respondent.
CourtOregon Court of Appeals

Maureen Leonard argued the cause for appellants. With her on the briefs was David K. Miller, Portland.

Pamela J. Stendahl argued the cause for respondent. With her on the brief were Molly Jo Mullen, Portland, and Bodyfelt Mount LLP.

Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.*

WOLLHEIM, P.J.

Plaintiff in this medical malpractice action appeals a limited judgment in favor of defendant Willamette Spine Center, LLC.1 Plaintiff underwent back surgeries, which injured his spinal cord.2 Plaintiff sought damages from defendant, the surgeon (Dr. Borman), and a number of other medical providers. He contended that Borman was defendant's actual or apparent agent and, therefore, defendant was vicariously liable for plaintiff's injuries. Defendant moved for summary judgment. The trial court concluded that plaintiff had not presented evidence sufficient to raise a genuine issue of material fact as to whether Borman was defendant's actual or apparent agent. We affirm.

When reviewing a trial court's grant of summary judgment, we view the facts and all reasonable inferences that may be drawn from them in the light most favorable to the nonmoving party—in this case, plaintiff. Vaughn v. First Transit, Inc., 346 Or. 128, 132, 206 P.3d 181 (2009). Defendant is a limited liability company that leased the medical office building where Borman's office was located. It identified the building as the Willamette Spine Center and had placed signage on and near the building using that name. At least one of the exterior signs also included a logo. Defendant sublet areas of the building to various medical providers. The names of the subtenant medical providers were listed on a window near the front door of the building. Dr. Michael Freeman is one of defendant's members and also has an office in the Willamette Spine Center building.

One of defendant's subtenants was Dr. Frederick Tiley who, in turn, entered into an association agreement with Borman. Pursuant to that agreement, among other things, Tiley shared space with and collected rent from Borman. In addition, in the association agreement, Tiley identified himself as "an established spine surgeon with the Willamette Spine Center."

Borman used business cards that, along with his name and contact information, included the name Willamette Spine Center, the building address, and the logo that also appeared on one of the exterior signs. In addition, in a listing for a professional convention, Borman identified himself as "Orthopedic spinal surgeon, Willamette Spine Center, Salem, Ore." Furthermore, in the record of his contributions to a particular political action group, Borman identified himself as "Willamette Spine Center/physician."

Some physicians in the Willamette Spine Center building placed an advertisement in the yellow pages using the term "WSC providers," and the logo discussed above. In that ad, they also referred to their practice as "Willamette Spine Center Chiropractic Physicians." Borman's name is not listed in that yellow page advertisement. In addition, a printed page of an Internet website dated May 24, 2006, was submitted to the trial court. The website is titled "Willamette Spine Center," contains the logo, and has contact information for Tiley as well as Dr. Donald Olson. It also provides information about those doctors as well as each of their staff. It does not include any contact or other information relating to Borman. Furthermore, it does not appear to have specific information about any of the physicians in the building aside from Tiley and Olson. The website contains text stating,

"Willamette Spine Center was developed from a desire to provide comprehensive spinal care and pain management services, equipped with state of the art equipment, dedicated physicians who are expert in the practice, and knowledgeable staff committed to serving the needs of the patients. The patients served by the Willamette Spine Center are individuals with both spinal and pain disorders. The center utilizes all of its medical providers as a multidisciplinary team to assure patients receive the services they need from the onset of the disease process to the completion of a rehabilitative program."

Plaintiff also submitted an article posted on the Internet in 2001, in which Freeman identified himself as the comedical director of the Willamette Spine Center.

Through his own work, plaintiff became acquainted with Freeman and, on the basis of that acquaintance, sought treatment from Freeman for back pain.3 Freeman referred plaintiff to a physical therapist whose office was in the Willamette Spine Center building and, eventually, to Borman. Plaintiff "believed Dr. Borman was a Willamette Spine Center surgeon and, as such, was acting on behalf of his clinic, Willamette Spine Center." Furthermore, Borman's office was in the Willamette Spine Center building and "there was nothing plaintiff saw or was told that suggested that Dr. Borman was independent of the Willamette Spine Center." In September 2003, Borman performed a series of back surgeries on plaintiff, injuring his spinal cord during those surgeries. Those injuries left plaintiff partially paralyzed.

Plaintiff sued a number of medical providers as well as defendant. He sought recovery for his injuries from defendant on the theory that Borman was defendant's actual or apparent agent. Defendant moved for summary judgment on those issues, contending that no objectively reasonable juror could find, based on the facts of this case, that Borman was defendant's actual or apparent agent. The trial court agreed. At the hearing on defendant's summary judgment motion, the trial court stated that the evidence and argument presented by plaintiff was

"not enough. It's not enough. I'm trying like crazy to read this in a way that is such that we can keep this landlord in this case. But it's smoke and mirrors.
"* * * * *
"I'd require some facts that would give us the basis upon which plaintiffs could rely that was something that was caused by the * * * landlord of this property. And I can't find any facts that connect it up."

Based on its conclusions, the trial court granted summary judgment in favor of defendant.

On appeal, we review the trial court's order of summary judgment to determine whether we agree that "there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law." ORCP 47 C; O'Dee v. Tri-County Metropolitan Trans. Dist., 212 Or. App. 456, 460, 157 P.3d 1272 (2007). There is no genuine issue of material fact if, "based on the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." ORCP 47 C.

With the foregoing standards in mind, we turn to plaintiff's assertion that the trial court improperly granted summary judgment because "the law and the facts support an actual agency relationship" between defendant and Borman. (Boldface omitted.) According to plaintiff, the evidence that Borman offered spine-related services and that Dr. Freeman "referred plantiff to, and scheduled him with, Borman" is sufficient to demonstrate that there was an actual agency relationship.4 We disagree.

Generally, an agency relationship "results from the manifestation of consent by one person to another that the other shall act on behalf of and subject to his control, and consent by the other to so act." Vaughn, 346 Or. at 135, 206 P.3d 181 (quoting Hampton Tree Farms v. Jewett, 320 Or. 599, 617, 892 P.2d 683 (1995); internal quotation marks omitted; emphasis in Vaughn). "The principal's `control' over what the agent shall or shall not do is necessary for an agency relationship, but it is not, on its own, sufficient to create such a relationship." Vaughn, 346 Or. at 136, 206 P.3d 181. In addition to the requirement that the principal have a right to control the acts of its agent, for an agency relationship to exist, both parties must also agree that the agent will act on the principal's behalf. Id.; see also Checkley v. Boyd, 198 Or.App. 110, 134, 107 P.3d 651, rev. den, 338 Or. 583, 114 P.3d 505 (2005) (principal's consent is necessary for actual agency relationship).

Here, no facts suggest that either requirement for an actual agency relationship has been satisfied. The evidence identified by plaintiff—primarily that Freeman, one of defendant's members and also a practitioner in the Willamette Spine Center building, referred plaintiff to and scheduled him with Borman—is not indicative of an actual agency relationship. A referral of a patient by one medical provider to another does not, by itself, establish any right to control or an agreement to an agency relationship.

However, plaintiff suggests that that general test for agency does not apply in this case. Instead, he contends that, in the case of physicians, different standards apply to determine whether an actual agency relationship has been created. In support of that assertion, plaintiff relies on Giusti v. Weston Co., 165 Or. 525, 108 P.2d 1010 (1941), and Bridge v. Carver, 148 Or.App. 503, 941 P.2d 1039, rev. den, 326 Or. 57, 944 P.2d 947 (1997).

In Giusti, the court addressed whether a hospital was liable for the medical malpractice of certain physicians "in the employ of the company." 165 Or. at 528, 108 P.2d 1010. The hospital...

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6 cases
  • Eads v. Borman
    • United States
    • Oregon Supreme Court
    • April 26, 2012
    ...liable for the surgeon's negligence on an apparent agency theory. The Court of Appeals agreed, and affirmed. Eads v. Borman, 234 Or.App. 324, 227 P.3d 826 (2010). We granted plaintiff's petition for review to resolve when a nonnegligent person or entity may be held vicariously liable on an ......
  • Towner v. Bernardo
    • United States
    • Oregon Court of Appeals
    • May 28, 2020
    ...that may be drawn from them in the light most favorable to the non-moving party—in this case, plaintiff." Eads v. Borman , 234 Or. App. 324, 326, 227 P.3d 826 (2010), aff'd , 351 Or. 729, 277 P.3d 503 (2012) ( Eads I ). With that standard in mind, we state the following facts.A. Factual Bac......
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    • United States
    • U.S. Bankruptcy Court — Western District of Arkansas
    • November 16, 2011
    ...Ark.App. 23, 29, 270 S.W.3d 369, 375 (2007) (citing Reed v. Smith Steel, Inc., 77 Ark.App. 110, 78 S.W.3d 118 (2002)); Eads v. Borman, 227 P.3d 826, 829 (Or.App.2010) (citing Vaughn v. First Transit, Inc., 346 Or. 128, 206 P.3d 181 (2009) (quoting Hampton Tree Farms v. Jewett, 320 Or. 599, ......
  • Fenimore v. Blachly-Lane Cnty. C.E.A.
    • United States
    • Oregon Court of Appeals
    • April 10, 2019
    ...that may be drawn from them in the light most favorable to the nonmoving party—in this case, plaintiff." Eads v. Borman , 234 Or. App. 324, 326, 227 P.3d 826 (2010).II. PLAINTIFF’S CLAIM FOR DAMAGESAs described, plaintiff brought an action for money damages against defendants under ORS 659A......
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