Paintsville Hosp. Co. v. Rose, 84-SC-14-DG

• Citation: 683 S.W.2d 255
• Decision Date: 17 January 1985
• Docket Number: No. 84-SC-14-DG,84-SC-14-DG
• Parties: PAINTSVILLE HOSPITAL COMPANY, Movant, v. Jake ROSE, Administrator of the Estate of Grimsey Rose, Deceased, Respondent.
• Court: United States State Supreme Court (Kentucky)

Page 255

683 S.W.2d 255

PAINTSVILLE HOSPITAL COMPANY, Movant, v. Jake ROSE, Administrator of the Estate of Grimsey Rose, Deceased, Respondent.

No. 84-SC-14-DG

Supreme Court of Kentucky.

Jan. 17, 1985.

Michael J. Schmitt, Paintsville, for movant.

John H. Hogin, Hogin, Guyton, London & Montgomery, Knoxville, Tenn., F.C. Bryan, Bryan & Fogle, Mount Sterling, for respondent.

Edgar A. Zingman, Susan T. Barnett, Mary Ann Main, Wyatt, Tarrant & Combs, Louisville, for amicus curiae.

LEIBSON, Justice.

The issue is whether the appellant, Paintsville Hospital, can be held liable on principles of ostensible agency or apparent authority for the negligence of a physician who was not employed by the hospital but who furnished treatment in the emergency room which was provided by the hospital and open to the public.

The complaint alleges that plaintiff's decedent, Grimsey Rose, age sixteen, was found unconscious on the street in Paintsville, Kentucky, with an impact point on his left jaw and his crushed glasses nearby; that he was taken from there to the emergency room at Paintsville Hospital by ambulance, and treated in the emergency room by Dr. K.J. Ikramuddin, who negligently failed to diagnose his condition.

Dr. Ikramuddin was a private physician, and not an employee of the hospital. However, she was on the staff of the hospital and performed emergency room services according to a roster prepared by the hospital administrator. Her work in the emergency room was performed on an "on-call" basis, so she was called by the hospital to attend Grimsey Rose upon his arrival. Dr. Ikramuddin is charged with negligence causing the death of Grimsey Rose in failing to properly read head x-rays resulting in failure to diagnose a skull fracture with subdural hematoma.

According to Paintsville Hospital's Pretrial Memorandum, when the parents of Grimsey Rose arrived at the emergency room, the doctor discussed the problem of a possible drug reaction or a head injury with them and obtained permission to admit the patient to the hospital for overnight observation. She then arranged for his post-admission treatment by a different physician because her specialty was obstetrics and gynecology, and she then obtained payment by check for her services.

The trial court granted summary judgment to the hospital "on the issue of whether or not the hospital was vicariously liable for the acts and/or omissions, if any, of Dr. Kamar J. Ikramuddin." The trial court's finding that Dr. Ikramuddin had no actual agency relationship with the hospital at the time the doctor treated Grimsey Rose in the emergency room is not in dispute. The finding that no "ostensible agency" existed is the subject of this appeal. The record is devoid of reasons for or against this finding, except for the fact that the parents tried to employ the doctor to continue on with the care and treatment of the decedent beyond the time he was seen by her in the emergency room, and were refused, from which the trial court concludes that "the family of the decedent considered Dr. Ikramuddin to be a physician independent of the control of the hospital."

The Court of Appeals reversed the summary judgment. We affirm.

The proper function for a summary judgment in a case of this nature "is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." Roberson v. Lampton, Ky., 516 S.W.2d 838, 840 (1974). It is only proper where the movant shows that the adverse party could not prevail under any circumstances. Kaze v. Compton, Ky., 283 S.W.2d 204 (1955). Summary judgment is premature and should not be granted, "although the facts and evidence thus far developed do not establish the existence of a genuine issue of material fact, [where] neither do they establish the non-existence of such an issue." Barton v. Gas Service Co., Inc., Ky., 423 S.W.2d 902, 904 (1968). In short, it is not a substitute for trial, nor is it the functional equivalent of a motion for directed verdict.

With this background it is clear that the record in the present case does not support granting a summary judgment if ostensible agency as alleged in the amended complaint is a viable legal theory under our law. The appellant claims that the record fails to establish that the decedent or his parents relied on the fact that Dr. Ikramuddin was an employee of the hospital in accepting her treatment. Neither does it refute it. Further, the cases applying the principle of ostensible agency to the hospital/emergency room physician situation, without exception, do not require an express representation to the patient that the treating physician is an employee of the hospital, nor do they require direct testimony as to reliance. A general representation to the public is implied from the circumstances. Without exception evidence sufficient to invoke the doctrine has been inferred from circumstances similar to those shown in the present case, absent evidence that the patient knew or should have known that the treating physician was not a hospital employee when the treatment was performed (not afterwards).

The landmark case applying the principle of ostensible agency to physicians not employed by the hospital but furnished through the institutional processes is Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915 (1955), where it was applied to an anesthesiologist. Since then few courts have failed to recognize the soundness of this application, and the concept has been generally applied not only to anesthesiologists, but to pathologists, radiologists, and emergency room physicians, all of whom share the common characteristic of being supplied through the hospital rather than being selected by the patient. Our research reveals the following cases applying ostensible agency to emergency room physicians in circumstances similar to the present case, and none to the contrary: ¹

1) Adamski v. Tacoma General Hospital, 20 Wash.App. 98, 579 P.2d 970 (1978).

2) Vanaman v. Milford Memorial Hospital, Inc., 272 A.2d 718 (Del.1970).

3) Hannola v. City of Lakewood, 68 Ohio App.2d 61, 426 N.E.2d 1187 (1980).

4) Capan v. Divine Providence Hospital, 287 Pa.Super. 364, 430 A.2d 647 (1980).

5) Stewart v. Midani, 525 F.Supp. 843 (N.D.Ga.1981).

6) Themins v. Emanuel Lutheran Charity Board, 54 Or.App. 901, 637 P.2d 155 (1981).

7) Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (1977).

8) Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla.App.1982).

9) Edmonds v. Chamberlain Memorial Hospital, 629 S.W.2d 28 (Ten.App.1981).

10) Mduba v. Benedictine Hospital, 52 A.D.2d 450, 384 N.Y.S.2d 527 (App.Div.1976).

11) Arthur v. St. Peters Hospital, 169 N.J.Super. 575, 405 A.2d 443 (1979).

While there are no cases from our court applying the principle of ostensible agency to the present situation, ² the principle itself is one recognized and of longstanding in Kentucky. In Middleton v. Frances, 257 Ky. 42, 77 S.W.2d 425 (1934), we applied this principle to establish the liability of a taxicab company to a passenger where the sole connection between the driver and the taxicab company was the company's name painted on the taxi and rent paid to the company for the privilege of operating it from the company office. The company did not employ the driver and received no part of the earnings from his taxicab. Quoting Corpus Juris, we stated:

"An apparent or ostensible agent is one whom the principal, either intentionally or by want of ordinary care, induces third persons to believe to be his agent, although he has not, either expressly or by implication, conferred authority upon him." 77 S.W.2d at 426.

The principles of apparent or ostensible agent are discussed at length in Restatement (Second) of Agency Sec. 267 (1958):

"One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such."

We cited the same section from the earlier edition of the Restatement of Agency with approval in Middleton v. Frances, supra. Further, the Restatement (Second) of Agency makes the following statement significant to our discussion in Sec. 49, explaining the difference between "Interpretation of Apparent Authority Compared with Interpretation of Authority":

"(a) manifestations of the principal to the other party to the transaction are interpreted in light of what the other party knows or should know instead of what the agent knows or should know,...."

As stated by the Superior Court of New Jersey in discussing the public's reasonable expectation of emergency room physician in Arthur v. St. Peters Hospital, 169 N.J.Super. 575, 583, 405 A.2d 443, 447 (1979):

"[P]eople who seek medical help through the emergency room facilities of modern-day hospitals are unaware of the status of the various professionals working there."

In these circumstances it is unreasonable to put a duty on the patient to inquire of each person who treats him whether he is an employee or independent contractor of the hospital. Grewe v. Mt. Clemens General Hospital, 404 Mich. 240, 273 N.W.2d 429 (1978). Indeed, it would be astonishing for courts to require a patient to ask emergency room personnel such a question considering the usual circumstances of the patient at the time he seeks out the emergency room for treatment.

The realities of the situation calls upon us to interpret ostensible agency as has been done by the courts of sister states, as evidenced by the following quotes:

"Absent notice to the contrary, therefore, plaintiff had the right to assume that the treatment received was being rendered through hospital employees and that any negligence associated with that treatment would render...