Estates of Milliron v. Francke
| Decision Date | 01 June 1990 |
| Docket Number | No. 89-558,89-558 |
| Parties | The ESTATES OF Alfred L. MILLIRON and Anna B. Milliron, Plaintiffs and Appellants, v. Walter FRANCKE, M.D., and Roundup Memorial Hospital, Defendants and Respondents. |
| Court | Montana Supreme Court |
Dane C. Schofield, Peterson, Schofield & Leckie, Billings, for plaintiffs and appellants.
Richard F. Cebull, Anderson, Brown, Gerbase, Cebull, Fulton, Joseph P. Hennessey, Billings, for defendants and respondents.
This is an appeal by the estates of the decedent plaintiff and his now deceased wife arising out of a medical malpractice claim. The plaintiff estates appeal the order of the Montana Fourteenth Judicial District Court, Musselshell County, granting summary judgment to the defendant Roundup Memorial Hospital on the grounds that it cannot be held vicariously liable for the alleged negligence of an independent contractor radiologist under the facts of this case. We affirm.
Appellants raise the following issues on appeal:
(1) Did the District Court err in concluding that there were no genuine issues of material fact regarding ostensible agency as a theory for imposing vicarious liability upon the hospital for the negligence of a radiologist?
(2) Did the District Court err in concluding that the hospital cannot be held liable for alleged negligent radiology services supplied by an independent contractor under the theory of nondelegable duty?
Alfred Milliron was an out-patient at the Roundup Memorial Hospital on December 6, 1984. He was referred to the hospital and the radiologist who practiced there, Dr. Francke, by his family physician, Dr. Moshman, for evaluation of prostatitis and obstructive uropathy. The method used by the radiologist is called an I.V.P. (intravenous pyelogram.) This is a special x-ray procedure involving the injection of a dye which has certain hazards that were allegedly explained to the patient by Dr. Francke.
After injection of this dye, Alfred Milliron suffered a reaction and eventually lost consciousness and experienced cardiopulmonary difficulties. He was successfully resuscitated but sustained serious neurological deficit. After filing of this lawsuit, Mr. Milliron died and subsequently his wife, who was added as plaintiff in an amended complaint also died. A further amendment substituted the estates of the Millirons as plaintiffs in this case.
Plaintiffs' amended complaint alleged several different theories to support imposition of liability on the hospital. The only remaining theories of concern to this appeal are vicarious liability based on apparent or ostensible agency or the existence of a nondelegable duty.
As the District Court noted, summary judgment is never to be used as a substitute for trial if a genuine issue of material fact exists. Rule 56, M.R.Civ.P., Reaves v. Reinbold (1980), 189 Mont. 284, 287, 615 P.2d 896, 898. On the other hand, "[w]hen the record discloses no genuine issue of material fact, the party opposing summary judgment has the burden of presenting evidence of a material and substantial nature raising a genuine issue of material fact." Montana Deaconess Hospital v. Gratton (1976), 169 Mont. 185, 189, 545 P.2d 670, 672.
The plaintiffs rely heavily on Kober & Kyriss v. Stewart & Billings Deaconess Hospital (1966), 148 Mont. 117, 417 P.2d 476, in maintaining that material fact issues exist concerning an agency relationship between the radiologist and the hospital. In Kober, we held that summary judgment was inappropriate because
[w]hether Dr. Stewart was an independent contractor or an agent of the hospital as to Mr. Kryss will, in all likelihood, be determined by the trier of fact as the issue is developed.
417 P.2d at 480. However, Kober can be distinguished from the present case. Kober involved interpretation of a contract between the hospital and a radiology clinic that failed to specify if the head radiologist provided by the clinic was an independent contractor or agent of the hospital:
... this Court cannot determine from the contract whether Dr. Stewart is an independent contractor or an agent of the hospital. Nowhere in the contract is the director specifically labeled an independent contractor.
417 P.2d at 479. Thus, in Kober there was at least a genuine issue of material fact regarding the existence of an actual agency relationship between the parties. Here, the radiologist is specifically labeled an independent contractor in the radiology agreement between him and the hospital. Thus the plaintiffs are arguing the existence of an "apparent" or "ostensible" agency rather than an actual agency relationship. Furthermore, in Kober the plaintiff was admitted to the hospital for other reasons and subsequently was sent to the hospital's radiology department for x-rays as an in-patient. Here, the decedent was an out-patient who was sent to the hospital by his own doctor in order to have x-rays done under the supervision of the consulting radiologist.
Nevertheless, examining the facts of this case in light of Kober, summary judgment would be improper if there exists any genuine issue of material fact regarding the existence of an "apparent" or "ostensible" agency between the hospital and the radiologist. See Burkland v. Electronic Realty Associates, Inc., (1987), 228 Mont. 113, 117, 740 P.2d 1142, 1145. We conclude that the plaintiffs have failed to demonstrate any material factual disputes regarding the existence of such an agency relationship in this case.
First, we note that plaintiffs urge us to adopt the rule of liability under an ostensible agency set forth in Sec. 429 of the Restatement 2d of Torts. We find it unnecessary to adopt such a rule in this case, as liability based on ostensible agency is already specifically covered by statute, Sec. 28-10-103, MCA, which provides:
28-10-103. Actual versus ostensible agency. An agency is either actual or ostensible. An agency is actual when the agent is really employed by the principal. An agency is ostensible when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent who is not really employed by him. (Emphasis added.)
Section 28-10-103, MCA. The plaintiffs allege the following facts as a basis for a finding of ostensible agency: the hospital agreed to provide adequate space, equipment, and...
To continue reading
Request your trial
-
Brookins v. Mote
...¶ 37 We have decided two cases involving claims of ostensible agency between a doctor and a hospital. In Estates of Milliron v. Francke, 243 Mont. 200, 203, 793 P.2d 824, 826–27 (1990), a patient claimed an ostensible agency between a radiologist and a hospital in Roundup because the hospit......
-
Pilgeram v. Greenpoint Mortg. Funding, Inc.
...relationship is one purely of law. Elkins v. Husky Oil Co., 153 Mont. 159, 166, 455 P.2d 329, 332 (1969); Estates of Milliron v. Francke, 243 Mont. 200, 204, 793 P.2d 824, 827 (1990); Semenza, ¶ 19.MERS is not a beneficiary under Montana's STFA. ¶ 13 The Pilgerams argue that MERS had no aut......
-
Simmons v. Tuomey Regional Medical Center
...regulations, and practice of medicine in emergency room is not an inherently dangerous activity); see also Estates of Milliron v. Francke, 243 Mont. 200, 793 P.2d 824, 827 (1990) (refusing to apply nondelegable duty doctrine to hold hospital liable for the negligent acts of a radiologist, a......
-
Butler v. Domin
...vicariously liable for the negligent acts of physicians operating as independent contractors. See, e.g., Estates of Milliron v. Francke (1990), 243 Mont. 200, 204, 793 P.2d 824, 827. However, a hospital is responsible as a principal to third persons for the negligent acts of its actual or o......