Popovich v. Allina Health Sys., A18-1987

Decision Date08 July 2019
Docket NumberA18-1987
PartiesAlla K. Popovich, as wife and Guardian Ad Litem for Aleksandr M. Popovich, et al., Appellants, v. Allina Health System, Respondent, Emergency Physicians Professional Association, et al., Defendants.
CourtCourt of Appeals of Minnesota

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).


Stauber, Judge*

Dissenting, Ross, Judge

Hennepin County District Court

File No. 27-CV-18-10905

Brandon Thompson, Colin F. Peterson, Robins Kaplan LLP, Minneapolis, Minnesota (for appellants)

Charles F. Webber, Nicholas J. Nelson, Elie C. Biel, Faegre Baker Daniels LLP, Minneapolis, Minnesota (for respondent, Allina Health System)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Stauber, Judge.



In this interlocutory appeal from partial judgment, appellant Alla K. Popovich, as wife and Guardian Ad Litem for Aleksandr M. Popovich, challenges the district court's order partially granting dismissal of her vicarious-liability claim against respondent Allina Health System (Allina). Because the district court did not err, we affirm.


In February 2016, Aleksandr Popovich visited the emergency room at Unity Hospital complaining of dizziness, loss of balance, blurred vision, headache, and shortness of breath. Dr. Aileen Haung, an emergency-room physician, treated Mr. Popovich in the emergency room and discharged him. Later that morning, Mr. Popovich was transported to the Mercy Hospital emergency room. Dr. Taj Melson, another emergency-room physician, evaluated Mr. Popovich and transferred him to Abbott Northwestern Hospital for further care. Mr. Popovich remained hospitalized for more than two weeks and spent a month in inpatient rehabilitation.

In June 2018, appellant Alla Popovich, Mr. Popovich's wife, initiated a civil action asserting that Mr. Popovich suffered severe and permanent damage requiring extensive ongoing therapy and medical care for the rest of his life. The complaint alleges that the emergency-room physicians were negligent, and that respondent Allina Health Services was legally culpable for the physicians' negligent acts and omissions through the doctrine of apparent authority. Allina owns Unity Hospital and Mercy Hospital. However, it isundisputed that the emergency-room physicians who treated Mr. Popovich are employees of Emergency Physicians Professional Association, and are not employed by Allina.

In November 2018, the district court granted Allina's motion to dismiss as a matter of law on the ground that a hospital is not vicariously liable for the acts of non-employees. The district court granted appellant's request to enter final partial judgment under Minnesota Rule of Civil Procedure 54.02, and this appeal follows.


The district court may grant a motion to dismiss a complaint if it "fail[s] to state a claim upon which relief can be granted." Minn. R. Civ. P. 12.02(e). On appeal, we review a district court's decision to dismiss a cause of action de novo. Cocchiarella v. Driggs, 884 N.W.2d 621, 624 (Minn. 2016). In this review, we consider only the facts alleged in the complaint, accept those facts as true, and construe all reasonable inferences in favor of the nonmoving party. Bahr v. Capella Univ., 788 N.W.2d 76, 80 (Minn. 2010). A claim survives dismissal if it is "possible on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded." Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 603 (Minn. 2014).

Appellant argues that Allina is vicariously liable for the acts of the emergency-room physicians under a principal-agent relationship. The doctrine of vicarious liability makes "a principal . . . liable for the act of an agent committed in the course and within the scope of the agency and not for a purpose personal to the agent." Semrad v. Edina Realty, Inc., 493 N.W.2d 528, 535 (Minn. 1992). An agent can bind a principal if the agent has actual or apparent authority. Duluth Herald & News Tribune v. Plymouth Optical Co., 176N.W.2d 552, 555 (Minn. 1970). Whether actual or apparent authority exists is a legal question reviewed de novo. State v. Dotson, 900 N.W.2d 445, 450 (Minn. App. 2017). Here, it is undisputed that the emergency-room physicians did not have actual authority to act on Allina's behalf. We therefore consider whether Allina is liable under the doctrine of apparent authority. "Apparent authority is that authority which a principal holds an agent out as possessing, or knowingly permits an agent to assume." Foley v. Allard, 427 N.W.2d 647, 652 (Minn. 1988).

Our decision in McElwain v. Van Beek is controlling. 447 N.W.2d 442 (Minn. App. 1989), review denied (Minn. Dec. 20, 1989).1 The McElwain court considered whether a hospital could be held vicariously liable for the alleged negligence of an emergency-room physician. Id. at 446-47. We rejected appellant's vicarious-liability claim and affirmed summary judgment in favor of the hospital, stating:

In Minnesota, a hospital can only be held vicariously liable for a physician's acts if the physician is an employee of the hospital. See Moeller v. Hauser, 237 Minn. 368, 378-79, 54 N.W.2d 639, 645-46 (1952). The evidence here shows that [respondent doctor] was an independent contractor who has staff privileges at many Twin City hospitals and is not an employee of [respondent hospital]. Thus, the respondent medical center is relieved of liability.

Id. at 446.

Moeller, on which McElwain relies, concerned a five-year-old boy who had been hospitalized with a fractured femur and put in traction in June, 1947. Moeller, 54 N.W.2d at 641-43. The senior attending physician of the fracture service (the staff doctor), had "assigned the care of the [boy] to himself as attending physician," which meant that he would retain the boy "in his care . . . until [the boy] was discharged." Id. at 642. The boy was seen by his staff doctor six or seven times between June 7 and June 30, but not between July 1 and July 10. Id. at 642, 646. Staff doctors "[had] the final responsibility for the care of patients." Id. at 645.

The boy remained in traction until July 10, when he experienced pain due to "a severe pressure sore, caused by localized and continued pressure which cut off circulation, [that] had developed on the top of his foot." Id. at 643. The staff doctor testified that the sore had taken between 24 and 60 hours, or one to two-and-a-half days, to develop; another doctor testified that it had taken several days. Id. at 647. Because of the sore, the boy required three further operations, one in 1947, and two in 1948; he was left with "a permanent partial disability of somewhere between 30 and 40 percent." Id. at 643.

An action was brought on the boy's behalf against the staff doctor, against the resident doctor who had provided routine care between July 1 and July 10, and against the hospital, on the ground that it was liable for the resident doctor's, but not the staff doctor's, acts. Id. at 641, 644. Staff doctors had their own established practices, maintained their own offices, and were appointed to the hospital staff by the county welfare board; they were not hired by the hospital. Id. at 642. Resident doctors were employed and paid bythe hospital, and staff doctors "supervise[d] the activities of the resident doctor[s] to some extent." Id. at 642, 645.

The staff doctor testified that, on June 30, he had "left word with the charge nurse . . . that the traction [should] be removed, a splint applied, and the boy be sent home," that he did not recall the name of the charge nurse, that no intern or resident doctor had accompanied him on June 30, and that he had not discussed the discharge with any other doctor. Id. at 646. No nurse testified that they had received the discharge instruction. Id. The head nurse testified that, if she had received a discharge order, it would have been carried out, and if any other nurse had received the order, it would have been written in the order book and then carried out. Id. at 647. There was no such order in the book. Id.

The supreme court noted that "the jury reasonably may have placed little credence on [the staff doctor's] explanation as to why he failed to visit [the patient] after June 30," and concluded that "the jury could have found that . . . the [staff] doctor was under a duty to see [the boy] sometime [after June 30 and] prior to July 10 and that the breach of this duty was the proximate cause of the injury." Id.

The resident doctor testified that "he saw the boy at least once and usually twice a day between July 1 and July 10," that he "did not see [the staff doctor] between July 1 and July 10," and that he "had no reason to call [the staff doctor]." Id. at 643. The supreme court noted that "[w]hether [the resident doctor] was actually as attentive as his testimony indicated was a question for the jury," and that "[its] finding of negligence against the resident doctor is amply supported by the evidence in the record." Id.

The supreme court also agreed with the district court that the hospital was liable for the resident doctor's negligence, rejecting the board's argument that, because the resident doctor was "under the authoritative control of the staff doctor," the hospital was not liable for his negligence. Id. at 644 "[We] hold that a resident doctor in a hospital who receives his compensation from the hospital while providing medical care as a part of regular hospital routine is a servant of the hospital so as to make the hospital liable for his negligence." Id. at 646.

Thus, the supreme court affirmed the district court's decision that the hospital was liable for the resident doctor's contributory negligence because the resident doctor was a hospital employee, and neither the district court nor the supreme court considered whether the hospital was liable for the causal negligence of the staff doctor, who was not an employee of the...

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