Pamperin v. Trinity Memorial Hosp.

• Decision Date: 31 May 1988
• Docket Number: No. 87-0029,87-0029
• Citation: 144 Wis.2d 188,423 N.W.2d 848
• Parties: Clarence C. PAMPERIN and Doris M. Pamperin, Claimants-Appellants-Petitioners, v. TRINITY MEMORIAL HOSPITAL and St. Paul Fire & Marine Insurance Company, Defendants-Respondents, Ronald E. Schulgit, M.D., CNA Insurance Company, and Wisconsin Patients Compensation Fund, Defendants.
• Court: Wisconsin Supreme Court

Page 848

423 N.W.2d 848

144 Wis.2d 188

Clarence C. PAMPERIN and Doris M. Pamperin Claimants-Appellants-Petitioners, v. TRINITY MEMORIAL HOSPITAL and St. Paul Fire & Marine Insurance Company, Defendants-Respondents Ronald E. Schulgit, M.D., CNA Insurance Company, and Wisconsin Patients Compensation Fund, Defendants.

No. 87-0029.

Supreme Court of Wisconsin.

Argued Jan. 5, 1988.

Decided May 31, 1988.

Victor C. Harding, argued, Ted M. Warshafsky, and Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch, S.C., on brief, Milwaukee, for claimants-appellants-petitioners.

Samuel J. Leib, argued, and Blumenthal, Jacquart, Wilke & Blumenthal, on brief, Milwaukee, for defendants-respondents.

D. James Weis of Johnson, Weis, Paulson & Priebe, S.C., amicus curiae, for Wisconsin Academy of Trial Lawyers.

CALLOW, Justice.

This is a review of an unpublished decision of the court of appeals which affirmed an order of the circuit court for Milwaukee county, Judge Robert W. Landry, dismissing Trinity Memorial Hospital and St. Paul Fire & Marine Insurance Company from a medical malpractice action brought by Clarence and Doris Pamperin.

This case involves an action by Clarence and Doris Pamperin to recover damages from Trinity Memorial Hospital (Trinity) for the alleged negligence arising out of the care and treatment provided to Clarence Pamperin (Pamperin) following his admission to Trinity's emergency room. In seeking to impose liability, Pamperin argues that Trinity should be liable for the negligence of a radiologist, practicing medicine at Trinity, under one of the following theories: (1) respondeat superior, (2) apparent authority, or (3) nondelegable duty.

The case before us concerns the admission of an injured person to a hospital emergency room for treatment when the admission of the patient was not at the direction of a personal attending physician. We are not called upon to determine the liability of the hospital when the hospital services are conducted under the supervision of the patient's personal physician and, therefore, do not address that question.

Under facts such as we have in this case, we conclude that when a hospital holds itself out to the public as providing complete medical care, a hospital can be held liable under the doctrine of apparent authority for the negligent acts of the physicians retained by the hospital to provide emergency room care, irrespective of the fact that the person who committed the negligent act was an independent contractor. By holding themselves out as providing complete care, hospitals have created the appearance that the hospital itself, through its agents or employees, treats emergency room patients. When a hospital does not inform incoming patients which, if any, care or service is provided by independent contractors, and not by employees or agents, a patient should be able to look to the hospital for the negligence of the physician retained by the hospital to provide medical care. Moreover, because complete medical care consists of both direct care and support services, liability should attach regardless of whether the physician who is negligent is treating the patient directly or assisting in treating the patient by providing support services invisible to the patient.

We therefore hold that Trinity can be held liable under the doctrine of apparent authority for the negligence of its physicians who provide care incident to the admission of a patient to an emergency room, irrespective of the fact that the specific physician who committed the negligent act was an independent contractor. Accordingly, we reverse the decision of the court of appeals.

Because this case comes to us following motions for summary judgment, the facts before us on review are limited. In essence, they are that on January 3, 1982, Pamperin fell and injured his leg. He was thereafter taken to the emergency room at Trinity where he was examined by Dr. Ronald Schulgit (Schulgit). ¹ During the examination, Schulgit requested X-rays be taken of Pamperin's lower right leg. Schulgit read the X-ray, determined there was a minor ankle fracture, splinted the fracture, and then sent Pamperin home.

The next day the X-rays were read at Trinity by Dr. Boex (Boex), a radiologist. Boex also determined there was a minor ankle fracture. However, both Boex and Schulgit failed to observe that the X-rays also revealed a comminuted fracture of the proximal tibia at the knee.

The deposition of Boex indicates that, at the time Boex read the X-rays, he was an employee of Lakeview Radiologists, S.C. (Lakeview). According to Boex, Lakeview is a service corporation which contracted with Trinity to provide diagnostic radiology for Trinity. Under the terms of the contract, Lakeview is to provide twenty-four hour radiological services. Trinity is to provide the physical facilities, equipment, and staff. Although Lakeview is, under the contract, prohibited from engaging in any activity which will impair its ability to provide adequate radiological services, Lakeview is not prohibited from maintaining a separate practice. However, according to Boex, Lakeview provides radiological services only to Trinity.

Pamperin initially commenced this action before the Patient Compensation Panel (Panel). Prior to the Panel hearing, Pamperin filed a motion for summary judgment seeking to have the alleged negligence of Boex imputed to Trinity under the theories of apparent/ostensible agency, nondelegable duty, or respondeat superior. Trinity filed a brief in opposition to Pamperin's motion and filed a counter motion requesting the Panel to declare that, as a matter of law, Boex's negligence could not be imputed to Trinity. The Panel subsequently denied Pamperin's motion seeking to have Boex's negligence imputed to Trinity and held Trinity's motion in abeyance pending the Panel hearing.

In denying Pamperin's motion, the Panel first addressed the applicability of the doctrine of apparent authority. According to the Panel, the doctrine of apparent authority is founded in contract and is intended to protect an individual who relies upon the acts of someone who appears to be an agent of the principal sought to be held liable. After noting it was probable that Pamperin had not realized anyone besides Schulgit would read the X-rays, the Panel concluded that Pamperin failed to establish reliance sufficient to invoke the doctrine of apparent authority.

The Panel next rejected Pamperin's argument that liability should attach under the theory of respondeat superior. According to the Panel, Boex's employer, Lakeview, was an independent contractor. Thus Boex himself was never an employee of Trinity. Because the doctrine of respondeat superior is dependent upon an employee-employer relationship, the Panel concluded Trinity was not liable under this doctrine. The Panel also rejected Pamperin's argument that liability could be imputed under the theory of nondelegable duty. According to the Panel, because the work involved was not ultrahazardous and because no public policy grounds existed for making the provision of radiological services nondelegable, Trinity was not liable under the nondelegable duty theory.

At the conclusion of Pamperin's case, Trinity filed a motion for nonsuit/dismissal alleging that Pamperin had failed to prove any negligence by Trinity. Based upon its conclusion that Pamperin had failed to establish a prima facie case that Trinity itself was negligent, the Panel granted Trinity's motion for dismissal.

On May 27, 1986, Pamperin commenced a de novo action in the circuit court against Trinity and Schulgit. The insurers of Trinity and Schulgit, St. Paul Fire & Marine Insurance Company (St. Paul) and CNA Insurance Company (CNA) respectively, were added as defendants in June of 1986. In the complaint, Pamperin alleged that Trinity and Schulgit were negligent in the care and treatment rendered to Clarence Pamperin. Pamperin again moved for summary judgment requesting an order that Trinity was vicariously liable for the negligence of Boex.

In the brief in support of the motion, Pamperin advanced three separate theories for holding Trinity liable for Boex's negligence: (1) Boex was a servant of Trinity, and therefore Trinity is liable under the theory of respondeat superior; (2) Trinity has a nondelegable duty to provide a radiologist for its patients and is therefore estopped from denying liability; or (3) Trinity created an apparent or ostensible agency for its radiologists and is thus liable for the negligence of Boex. Trinity and St. Paul also filed a motion for summary judgment requesting an order dismissing them from the action or, in the alternative, a finding that they are not liable for the acts or omissions of Boex or Lakeview.

On October 27, 1986, the circuit court issued a decision granting summary judgment dismissing the malpractice action against Trinity and St. Paul. In reaching this conclusion, the court first held that Boex was an independent contractor. Next, the court noted that, in this case, because there was no allegation that Trinity was negligent in failing to check the credentials of Lakeview, whether the hospital was liable was "a question of agency." However, because the only type of agency relationship which would impose liability was a master-servant agency relationship, Trinity could not be liable for the acts of Boex, an independent contractor. The court further concluded that, although a hospital might owe a duty to one who relies upon an agency relationship, there was no liability in the present case because there was no evidence that Pamperin relied upon Boex's examination of the X-rays.

Pamperin appealed the order ² of the circuit court, and the court of appeals affirmed the circuit court's order. The court of appeals rejected Pamperin's argument that Johnson v. Misericordia Community Hospital, 99 Wis.2d 708, 301 N.W.2d 156 (1981), supported extending the liability of hospitals to...