Eads v. Borman
Citation | 234 Or. App. 324,227 P.3d 826 |
Decision Date | 17 March 2010 |
Docket Number | 05C18610,A137410. |
Parties | David 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. |
Court | Oregon 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.*
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."
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.
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 ( ). "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) ( ).
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).
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