outsourced services do not insulate your
facility from liability.
Facilities have in the past escaped liability
for the acts or omissions of independent
contractors on site. Because the contractors
were not directly employed by the facility,
they argued, the facility was shielded from
responsibility for their actions. The legal tide
has turned, however, and a number of court
rulings have since established a precedent
that holds facilities liable for contractors' as
well as employees' acts (see "Court:
Hospital Liable for Contracted
Anesthesiologist").
As a result, a surgical facility may be subject to vicarious liability if
an "apparent agency" relationship exists between the facility and the
contracted entity. That is to say, if a patient reasonably believes that a
subcontractor is acting on the facility's orders and under its direct
control, wholly representing the facility, she could conceivably file a
medical malpractice lawsuit seeking damages from the facility.
What is apparent agency?
In order to establish apparent agency, and thereby to assert a claim
for vicarious liability from a surgical facility, a medical malpractice
lawsuit must demonstrate the following 3 factors.
• What was communicated. The facility's communications with the
patient created an impression that the independent contractor had the
ability to act on the facility's behalf. For example: staff employees
refer to a subcontractor in a manner that leads the patient to conclude
that the subcontractor is also a staff member.
J U l y 2 0 1 6 • O U T PA T I E N TS U R G E R Y. N E T • 3 1
Apparent Agency
Apparent agency applies
when a hospital, by its
actions, has held out a
particular physician as
its agent and/or employ-
ee and a patient has
accepted treatment from
that physician in the rea-
sonable belief that it is
being rendered on
behalf of the hospital.
