Pamperin v. Trinity Memorial Hospital , 144 Wis. 2d 188 ( 1988 )

STEINMETZ, J.

(dissenting). I dissent from the majority opinion. Notwithstanding the fact that plaintiffs are in this court only because they failed to serve Dr. Boex before the statute of limitations passed, the majority of this court now holds that Trinity Memorial Hospital may be liable for the negligence of Dr. Boex, an independent contracting radiologist. His existence was not even known by the plaintiff at the time of treatment, nor was any reliance placed on Dr. Boex’s reading of the x-rays.

The majority applies the doctrine of apparent authority to hold the hospital liable for the negligence of Dr. Boex, an independent contractor who was not an employee or agent of the hospital. The majority’s contrived attempt to find the ingredient of reliance necessary to sustain a theory of apparent authority is unpersuasive.

To begin with, the precise holding of the majority is unclear. At page 193 of the slip opinion the holding is stated as follows: "[W]e 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.” This is far broader than the court's later statement of its holding at page 208 of the slip opinion as follows: "The rule we adopt today applies only where the patient looks to the hospital as the provider of health care and the hospital selects the physicians and its staff.” When read together, it is impossible to determine the true holding of the court and the precise scope of the decision.

The majority correctly states that in order for liability to attach under an apparent agency theory, three elements must be present: (1) acts by the agent or principal justifying belief in the agency; (2) knowledge thereof by the party sought to be held; (3) reliance thereon by the plaintiff, consistent with ordinary care and prudence. Schaefer v. Dudarenke, 89 Wis. 2d 483, 489-90, 278 N.W.2d 844 (1979). However, the majority fails to explain how the first element was satisfied in this case at all. Further, as to the third element, there is no showing in the facts that reliance was placed by this plaintiff on Dr. Boex’s reading and opinion of the x-ray whether correct or negligently in error.

The majority begins its analysis of apparent authority by pronouncing that: "Under apparent authority, a principal may be held liable for the acts of one who reasonably appears to a third person, through acts by the principal or acts by the agent if the principal had knowledge of those acts and acquiesced in them, to be authorized to act as an agent for the principal." Majority op. at 203. That statement does not fully and accurately set forth the law because it fails to even mention the necessity and critical element of reliance, which is the foundational ingredient of an apparent authority claim.

With respect to the first element — acts by the principal or agent justifying belief in an agency relationship — the majority relies on the rationale of other jurisdictions that "generally people who seek medical help through the emergency room facilities of modern-day hospitals are unaware of the status of the various professionals working there." Majority at 210. The majority concludes that the first element of apparent agency is satisfied upon proof that a hospital "held itself out as a provider of emergency room care without informing Pamperin that the care was provided by independent contractors." Majority at 210. This statement is problematic in at least two respects.

First, this is not a case of an emergency room doctor providing services to the patient as in some of the cases relied on by the majority. The treating physician in this case was Dr. Schulgit; Dr. Boex did not work in the emergency room, nor did he read Pamperin’s x-rays until the following day. Thus, the plaintiff did not even know of his presence or existence, much less that Dr. Boex or anyone would read the x-ray in addition to Dr. Schulgit. It is incomprehensible that the patient "'could properly assume’” that the treating doctors and staff of the hospital were acting on behalf of the hospital. Majority op. at 210. There is nothing in this case allowing for such assumption and even if there were, Dr. Schulgit was the treating physician in this case, not Dr. Boex.

Second, the majority, at page 210 of the slip opinion, states: "Many courts have concluded that a hospital, by providing emergency room care and by failing to advise patients that they were being treated by the hospital’s agent and not its employee, has created an appearance that the hospital’s agents, not independent contractors, will provide medical care to those who enter the hospital.” This suggests that a sign posted in the emergency room regarding the legal relationship of persons rendering direct or indirect assistance could establish or avoid liability. Or perhaps a hospital could protect itself from liability by ascertaining an individual’s knowledge of the hospital employment structure and providing the requisite information through yet another lengthy form to be processed by a patient or relatives upon admission of the individual to the emergency room.

As to the third element — reasonable reliance on the apparent agency by the plaintiff — the majority misconstrues the meaning and applicability of this element altogether. The majority improperly focuses, as did the courts in the cases cited by the majority, on whether the plaintiff relied on the reputation of the hospital. Majority op. at 211. This focus is misplaced; under the doctrine of apparent authority, which is basically a theory of agency by estoppel, the question is whether a patient reasonably relied on the apparent agency relationship, see Iowa National Mut. Ins. Co. v. Backens, 51 Wis. 2d 26, 36, 186 N.W.2d 196 (1971), not whether reliance was placed on the reputation of the hospital.

Furthermore, patients rarely, if ever, would elect to receive emergency medical care at a particular hospital based on the contractual arrangement between the hospital and staff physicians. Most probably, a hospital is typically chosen on the basis of the geographic proximity of the emergency room to the injury, condition or accident. Contrary to the suggestion implicit in the majority opinion, a person needing emergency care does not exercise deliberate and informed choice or "shop around” for emergency medical care services. Nor is the decision likely ever to be made based upon the employment structure contained within the hospital. More often than not, the receiving hospital is chosen by the driver of the emergency vehicle or private care conveyance and the primary concern of all involved is to get to the closest hospital as quickly as possible. The reputation of the hospital is likely only rarely considered; rather, its convenience is the greatest consideration in the patient’s mind, assuming the patient is even conscious at the time. In this case, there is nothing in the record to show that it was the plaintiff who selected Trinity Hospital for treatment. The majority states the plaintiff was taken to Trinity, not that he selected Trinity. Majority op. at 194.

Furthermore, the majority’s broad definition of "seeking care from the hospital,” i.e., where "a person voluntarily enters a hospital without objecting to his or her admission to the hospital," (majority op. at 212) is simplistically unrealistic in the context of emergency room admissions. Webster defines "emergency” as "an unforeseen combination of circumstances or the resulting state that calls for immediate action ... a sudden bodily alteration such as is likely to require immediate medical attention (as a ruptured appendix or surgical shock).” Webster’s Third New International Dictionary (1967). Faced with a medical emergency which oftentimes requires immediate treatment, a person cannot be held to have made a truly voluntary or meaningful choice of a hospital simply because he or she did not object to the facility. This Hobson’s Choice is merely a self-serving method of creating the element of reliance where it does not in reality exist.

Under the doctrine of apparent authority as this court has consistently applied the theory, the real issue here is whether Pamperin could have reasonably relied on the alleged acts of Trinity or Dr. Boex to justify Pamperin’s belief that an agency relationship existed. However, in the context of this case, there is not a factual basis to examine this issue. Because Pamperin was not even aware of the existence of Dr. Boex until after the statute of limitations passed, he cannot under any stretch of the imagination be said to have "relied” on anything with respect to this physician. Without even knowing the man existed, Pampe-rin could not have formed a belief regarding Dr. Boex’s relationship to the hospital, much less relied on that belief. If Pamperin sought instead to hold Trinity liable for Dr. Schulgit’s negligence, there might be a factual basis, if not a legal basis, to make an apparent authority claim. That is, assuming the first two elements of apparent authority were satisfied, a factual issue might arise as to whether Pamperin justifiably believed Dr. Schulgit was an agent of the hospital and relied on that belief when Dr. Schulgit treated him. Here, however, the patient was discharged before Dr. Boex entered the picture, and the radiologist’s existence was not known to Pamperin until more than two years had passed. Thus, there is not a factual basis under which an apparent authority claim can be meaningfully discussed.

While the majority correctly concludes that Johnson v. Misericordia is inapposite to the determination of this issue, it quotes substantially from the Miseri-cordia opinion. Majority op. at 206-207. While the general pronouncements excerpted from the Misericor-dia opinion may be perfectly true, taken out of the context of the issues presented in Misericordia, they are likewise perfectly meaningless. In reality, Misericordia would be applicable to this case only to the extent that a claim would be made that the hospital was negligent in hiring Lakeview Corporation to perform radiologic services. No such claim is advanced in this case.

Furthermore, despite the apparent limitation of hospital liability to "negligent acts of the physicians retained by the hospital to provide emergency room care." (Majority op. at 208) the majority would permit liability in this case, even though Dr. Boex was not retained by the hospital to provide emergency room care. Dr. Boex was an employee of Lakeview Corporation, an independent contractor who contracted with Trinity to provide all radiologic services, whether the need for these services originated in the emergency room or from another department of the hospital. The distinction between independent contractors providing emergency room care and those working elsewhere in the hospital not only appears to emanate from an artificial and arbitrary line, but it does not appear to have been followed in this case.

Finally, the majority opinion raises more questions than it answers. For example, where an unconscious patient is conveyed to an emergency room, is the reliance element negated? Does a public or private ambulance conveyance become an agent for the hospital for liability purposes if the ambulance driver rather than the patient selects the hospital?

In sum, under the majority’s decision, the concept of reliance within an apparent agency context is strained to the breaking point. The majority has, in effect, rewritten the contractual relationship between Trinity and Dr. Boex and has converted the radiologist’s role for liability purposes from an independent contractor to an agent of the hospital. This conversion effectively renders the hospital liable for any activity occurring within its four walls with the possible - exception of visitors’ behavior, unless, of course, the hospital can avoid liability altogether by merely strategically scattering a few signs at the emergency room door and within the hospital describing the employment relationship of various medical departments to the hospital and the legal effect thereof.

I am authorized to state that JUSTICE WILLIAM A. BABLITCH joins this dissent.