Fletcher v. South Peninsula Hosp.

• Decision Date: 13 June 2003
• Docket Number: No. S-10484.,S-10484.
• Citation: 71 P.3d 833
• Parties: John FLETCHER and Susan Fletcher, Appellants, v. SOUTH PENINSULA HOSPITAL, Appellee.
• Court: Alaska Supreme Court

71 P.3d 833

John FLETCHER and Susan Fletcher, Appellants, v. SOUTH PENINSULA HOSPITAL, Appellee.

No. S-10484.

Supreme Court of Alaska.

June 13, 2003.

Rehearing Denied July 10, 2003.

Rex Lamont Butler and David E. George, Rex Lamont Butler & Associates, Anchorage, for Appellants.

Howard A. Lazar, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Appellee.

Before: FABE, Chief Justice, MATTHEWS, BRYNER, and CARPENETI, Justices.

OPINION

FABE, Chief Justice.

I. INTRODUCTION

John and Susan Fletcher appeal to this court on three theories under which they argue South Peninsula Hospital should be held liable for the alleged negligence of an independent contractor surgeon who has staff privileges at the hospital. First, the Fletchers assert that the trial court erred in refusing to extend to the operating room the "non-delegable duty" vicarious liability that we applied to hospitals in Jackson v. Power¹ with respect to emergency room negligence. Second, the Fletchers argue that the trial court erred in granting South Peninsula summary judgment on the issue of the hospital's vicarious liability under the theory of apparent authority. Third, the Fletchers contend that the trial court erred in granting South Peninsula summary judgment on the issue of the hospital's direct liability under the theory of corporate negligence for its allegedly negligent renewal of staff privileges for the independent contractor surgeon. The Fletchers also argue that the trial court erred in denying their motion to relax the expert disclosure rules of Alaska Civil Rule 26(a)(2)(B). We affirm the trial court's rulings on non-delegable duty and apparent authority, but we reverse the rulings on corporate negligence and relaxation of expert disclosure rules.

II. FACTS AND PROCEEDINGS

A. Factual History

In January 1997 John Fletcher went to the office of Dr. Paul Eneboe, a Homer general practitioner, complaining of severe abdominal pain. This was the first time Fletcher had ever seen Dr. Eneboe. Dr. Eneboe made arrangements for Fletcher to see Dr. Rene Alvarez, a surgeon, at South Peninsula Hospital later that same day. Dr. Alvarez ultimately performed surgical procedures on Fletcher on four different occasions in February and March, after which Dr. Alvarez was still uncertain as to the cause of Fletcher's pain. Prior to each procedure, Fletcher was given a "consent for medical treatment" form that included language indicating that the physicians at South Peninsula were independent contractors and not employees or agents of the hospital. Fletcher's condition persisted and worsened, so he saw Dr. Paul Sayer, another surgeon, at the end of March. Dr. Sayer successfully operated on and treated Fletcher for diverticulitis.

B. Procedural History

The Fletchers filed a complaint against Dr. Alvarez and South Peninsula Hospital claiming that Dr. Alvarez negligently diagnosed and treated Fletcher and that South Peninsula negligently hired and granted hospital privileges to Dr. Alvarez and failed to investigate his competence as a surgeon.

South Peninsula moved for partial summary judgment, arguing that Dr. Alvarez was not an employee of the hospital, that the hospital could not be held liable under a theory of apparent agency, and that the Fletchers could not establish a prima facie case of negligent credentialing. The Fletchers filed an opposition to South Peninsula's motion as well as a cross-motion for partial summary judgment on the theory that the hospital had a non-delegable duty to provide competent surgeons. The Fletchers also filed a motion to relax the expert disclosure rules to allow Dr. Sayer to testify as an expert despite not complying with the requirements of Alaska Rule of Civil Procedure 26(a)(2).

The trial court denied the Fletchers' cross-motion for partial summary judgment, ruling that the Fletchers were not entitled to summary judgment as a matter of law on the non-delegable duty issue. The trial court also denied the Fletchers' motion to relax the expert disclosure rules. The trial court granted South Peninsula's motions for partial summary judgment on the issues of apparent agency and negligent credentialing. The Fletchers and Dr. Alvarez reached a settlement regarding the claims against him. The trial court then entered final judgment in favor of South Peninsula.

The Fletchers appeal the denial of their cross-motion for partial summary judgment on the issue of the hospital's non-delegable duty. They also appeal the granting of South Peninsula's motions for partial summary judgment on the issues of apparent agency and negligent credentialing. In addition, the Fletchers appeal the denial of their motion to relax the expert disclosure requirements.

III. DISCUSSION

A. The Non-Delegable Duty for Negligence in the Emergency Room Need Not Be Extended to the Operating Room in this Case.

The Fletchers argue that the trial court erred in refusing to determine as a matter of law that the rule laid down in Jackson v. Power,² which establishes vicarious hospital liability for independent contractor emergency room doctors under a theory of non-delegable duty, should be extended beyond the emergency room to the operating room. Whether a legal duty should be extended is a question of law. We are not bound by the trial court's decision, but rather conduct de novo review, "adopt[ing] the rule of law that is most persuasive in light of precedent, reason, and policy."³

1. The Jackson decision

In Jackson, we held that Fairbanks Memorial Hospital (FMH) had a non-delegable duty to provide non-negligent physician care in its emergency room.⁴ We concluded that the law imposed a duty on FMH to provide emergency care physicians on a twenty-four-hour basis.⁵ FMH voluntarily assumed a broader duty by seeking accreditation by the Joint Committee on the Accreditation of Hospitals, whose standards mandated certain policies and procedures for FMH's emergency room.⁶ FMH's bylaws also provided for maintenance and supervision of an emergency room.⁷ Based upon these factors, we concluded that "it cannot seriously be questioned that FMH had a duty to provide emergency room services and that part of that duty was to provide physician care in its emergency room."⁸

We then decided that "having assumed the duty to staff an emergency room, FMH should [not] be allowed to avoid responsibility for the care rendered therein by claiming that the physicians it provides are not its employees."⁹ We suggested that the criterion for determining which duties are non-delegable is that "the responsibility is so important to the community that the employer should not be permitted to transfer it to another."¹⁰ Non-delegable duties include

the duty of a carrier to transport its passengers in safety, of a railroad to fence its tracks properly or to maintain safe crossings, and of a municipality to keep its streets in repair; the duty to afford lateral support to adjoining land, to refrain from obstructing or endangering the public highway, to keep premises reasonably safe for business visitors, to provide employees with a safe place to work; the duty of a landlord to maintain common passageways, to make repairs according to covenant, or to use proper care in making them, and no doubt others.¹¹

We concluded that "patients ... receiving treatment at a hospital emergency room are as deserving of protection as ... airline passengers," deemed a hospital's duty to provide emergency room physicians to be as important to the community as a common-carrier's duty for the safety of its passengers, and noted parallels between the regulatory schemes of airlines and hospitals.¹²

We determined that "the hospital regulatory scheme and the purpose underlying it (to `provide for the development, establishment, and enforcement of standards for the care and treatment of hospital patients that promote safe and adequate treatment' AS 18.20.010)," coupled with "the statutory definition of a hospital, (an institution devoted primarily to providing diagnosis, treatment or care to individuals, AS 18.20.130(3))," made clear the legislature's recognition that "it is the hospital as an institution which bears ultimate responsibility for complying with the mandates of the law."¹³ Because the hospital had to ensure compliance with the regulations, it was the hospital that had to bear "final accountability for the provision of physicians for emergency room care."¹⁴ Therefore, we held that "a hospital such as FMH may not shield itself from liability by claiming that it is not responsible for the results of negligently performed health care when the law imposes a duty on the hospital to provide that health care."¹⁵ We observed that there was no reason that liability should be based on technical employment status; regardless of how the hospital provides emergency room physicians, it "will be responsible for the care rendered by physicians it has a duty to provide."¹⁶

Finally, we emphasized the limited nature of our holding. We did not extend our holding "to situations where the patient is treated by his or her own doctor in an emergency room provided for the convenience of the doctor. Such situations are beyond the scope of the duty assumed by an acute care hospital."¹⁷ Rather, we limited our holding of vicarious hospital liability "to those situations where a patient comes to the hospital, as an institution, seeking emergency room services and is treated by a physician provided by the hospital."¹⁸

2. Extension of Jackson is unwarranted and unnecessary in this case.

While Alaska regulations require general acute care hospitals to provide surgical services in addition to emergency services,¹⁹ and while patients in operating rooms are as deserving of protection as Jackson's emergency room patients, extension of the non-delegable duty to the operating room is not warranted in this case. The Fletchers' situation does not fit within the narrow confines of our decision in Jackson....