Towner v. Bernardo

• Decision Date: 28 May 2020
• Docket Number: A161012
• Citation: 304 Or.App. 397,467 P.3d 17
• Parties: Gail TOWNER, an Oregon resident, Plaintiff-Appellant, v. Peter A. BERNARDO, M.D., an Oregon resident, Defendant-Respondent. Gail Towner, an Oregon resident, Plaintiff-Appellant, v. Silverton Health, dba Silverton Hospital, an Oregon Corporation, Defendant-Respondent, and Cynthia Lynn Howard, CRNA, Defendant.
• Court: Oregon Court of Appeals

304 Or.App. 397

467 P.3d 17

Gail TOWNER, an Oregon resident, Plaintiff-Appellant,

v.Peter A. BERNARDO, M.D., an Oregon resident, Defendant-Respondent.

Gail Towner, an Oregon resident, Plaintiff-Appellant,

v.Silverton Health, dba Silverton Hospital, an Oregon Corporation, Defendant-Respondent,andCynthia Lynn Howard, CRNA, Defendant.

A161012

Court of Appeals of Oregon.

Argued and submitted March 8, 2018.

May 28, 2020

Brent Barton, Newport, argued the cause for appellant. On the opening brief was Travis Eiva. Also on the reply brief was Travis Eiva.

Michael J. Estok argued the cause for respondent Silverton Health. Also on the brief were James L. Dumas and Lindsay Hart, LLP.

Lindsey H. Hughes, Hillary A. Taylor, and Keating Jones Hughes, P.C., filed the brief for respondent Peter A. Bernardo, M.D.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Plaintiff Gail Towner appeals from the limited judgments dismissing her medical malpractice claims against defendant Silverton Health, dba Silverton Hospital. Plaintiff alleged that defendant Dr. Peter Bernardo negligently performed laparoscopic surgery on her at Silverton Hospital.¹ Plaintiff alleged that the hospital had direct and vicarious liability for its own negligence and Bernardo's negligence, respectively. Plaintiff challenges the trial court's rulings as to Silverton Hospital, and we address three of her four assignments of error.²

In plaintiff's first assignment, she contends that the trial court erred in granting defendant's motion to strike the allegation asserting that Silverton Hospital had a nondelegable duty to provide quality care within its facility under ORS 441.055 and is therefore directly and vicariously liable for Bernardo's negligent conduct. We conclude that the trial court did not err as to that ruling. In plaintiff's second assignment, she contends that the court erred in dismissing, under ORCP 21 A(8), her allegations that Silverton Hospital was negligent in "credentialing," hiring, retaining, and supervising Bernardo by giving him privileges at Silverton Hospital and allowing him to perform surgical procedures there. We conclude that the court erred in dismissing that allegation. In her third assignment, plaintiff contends that the court erred in granting summary judgment in favor of Silverton Hospital upon concluding that, because Bernardo was not the actual or apparent agent of the hospital, it was not vicariously liable for Bernardo's negligence. We conclude that there is evidence from which a reasonable juror could find that Bernardo was an apparent agent of Silverton Hospital and that, therefore, the hospital could be vicariously liable for Bernardo's alleged negligence. However, we conclude that, on this record, Bernardo was not an actual agent of Silverton Hospital as a matter of law and, therefore, Silverton Hospital cannot be vicariously liable on that basis. We reverse the limited judgments and remand to the trial court for further proceedings consistent with this opinion.

I. VICARIOUS LIABILITY: ACTUAL AND APPARENT AGENCY

We start by addressing plaintiff's third assignment of error challenging the trial court's grant of summary judgment. Plaintiff filed her complaint against Silverton Hospital claiming that Bernardo negligently performed surgery on her at the hospital. Plaintiff further alleged that Bernardo was the hospital's actual or apparent agent, and, therefore, the hospital was vicariously liable for Bernardo's negligence. Silverton Hospital moved for summary judgment, contending that it could not be vicariously liable as a matter of law under either an actual or apparent agency theory. The court agreed with the arguments presented by the hospital and explained that it "would grant summary judgment on the motion on both of the [theories], actual agency and apparent agency and enter judgment for Silverton Health based upon that."

We review a trial court's grant of summary judgment for legal error, and we will affirm if there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Balzer v. Moore , 293 Or. App. 157, 159, 427 P.3d 193, rev. den. , 363 Or. 817, 431 P.3d 423 (2018). There is "[n]o genuine issue as to a material fact" when "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." ORCP 47 C. In determining whether the court erred in granting summary judgment, "we view the facts and all reasonable inferences that may be drawn from them in the light most favorable to the non-moving party—in this case, plaintiff." Eads v. Borman , 234 Or. App. 324, 326, 227 P.3d 826 (2010), aff'd , 351 Or. 729, 277 P.3d 503 (2012) ( Eads I ). With that standard in mind, we state the following facts.

A. Factual Background

In October 2011, plaintiff began experiencing severe abdominal pain. She consulted her primary care physician, who tentatively diagnosed plaintiff with diverticulitis and advised her to seek emergency care. Plaintiff lived near Silverton Hospital and had brought her children there for medical care. Silverton Hospital advertised its services to the community, including by mailing marketing materials to local home addresses and posting advertisements in local newspapers. It consistently advertised its emergency and surgical services. In some advertisements, it touted the quality of "our Specialist Centers and medical staff" and represented that it "provides" medical services to the community. Others informed the public that Silverton Hospital offers a "Specialist Center" as well as "General Surgery" services. At least one advertisement included a photograph of Bernardo with a caption advertising "GENERAL/VASCULAR SURGERY" and other text that referenced "the professionals that comprise the Silverton Hospital Network" and "[o]ur specialty medical professionals." Silverton Hospital's website also listed Bernardo on the webpage describing the hospital's "Surgical Services" along with the message that "it is possible for area residents to stay close to home" for surgical services.

When she arrived at Silverton Hospital, an emergency room doctor evaluated plaintiff. That doctor admitted plaintiff to the hospital and contacted Bernardo, who was "on call" to evaluate possible surgical cases in the emergency room. Bernardo was licensed to practice medicine in Oregon and had his own private surgical practice. He had been granted staff privileges at a number of health care facilities, including Silverton Hospital. Those privileges allowed Bernardo to practice medicine at Silverton Hospital and subjected Bernardo to its peer review process, but Bernardo was not a Silverton Hospital employee.

As a condition of maintaining privileges at Silverton Hospital, Bernardo had agreed to follow the hospital's medical staff bylaws, which describe the nature of the duties owed by each member of the medical staff—whether employed by Silverton Hospital or an independent physician with privileges. Under the bylaws, active members of the medical staff were required to be "on call" to the Emergency Department at Silverton Hospital. Silverton Hospital paid "on call" doctors a flat rate for each "call shift" to which they responded. Apart from that flat fee, it did not pay Bernardo a salary or otherwise contribute to or support Bernardo's private medical practice. Under the bylaws, the hospital did not supervise or facilitate any doctor-patient relationship that continued between an "on call" doctor with privileges and his or her patient after that patient was discharged from the hospital. Those patients were free to continue to seek future services from the doctor in an independent capacity.

Without plaintiff's input, Silverton Hospital assigned Bernardo to plaintiff's case. Bernardo met plaintiff for the first time in her hospital room. Bernardo explained that he was the surgeon who would care for her. He explained her diagnosis—diverticulitis—and advised her that he was keeping her in the hospital overnight for observation. Bernardo saw plaintiff again in the hospital the next day. He explained that her condition had not improved and that she would likely need surgery, namely, a laparoscopic colectomy. Bernardo arranged with plaintiff to follow up with him at his office across the street from Silverton Hospital.

After the hospital's emergency room staff had admitted plaintiff to the hospital, Bernardo was the only doctor who discussed plaintiff's case with her during the three days she spent there. Nurses and other hospital staff cared for plaintiff as well. Some of those individuals vouched for Bernardo. One nurse told plaintiff and her husband that Bernardo was "a great doctor." A nurse—it is unclear if it was the same nurse—told plaintiff's husband that Bernardo was "one of our best."

On Bernardo's recommendation, plaintiff scheduled an appointment with Bernardo to discuss her surgery. She was later contacted by a member of Bernardo's staff and told that the visit would be at Bernardo's Salem-area office because he no longer maintained his office across from Silverton Hospital. Plaintiff traveled to Salem for her appointment. She met with Bernardo at his personal office, where nothing indicated that Silverton Hospital managed or was otherwise involved with Bernardo's practice. Plaintiff filled out paperwork at Bernardo's office, including a patient agreement, which similarly did not reference Silverton Hospital.

Plaintiff decided to have Bernardo perform the surgery at Silverton Hospital. Plaintiff chose the hospital because it was close to her home and because she "had faith in [Silverton]" and "had decent experiences with them." Prior to her surgery, plaintiff signed paperwork provided by the hospital, which included a general clause that "some" care providers who offer services at Silverton Hospital are not employed by the hospital, without naming any providers.

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