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Malpractice complaint hinges on claim of apparent agency

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The Indiana Court of Appeals concluded Wednesday that a Bartholomew Superior judge did not err in denying partial summary judgment on the issue of whether two physicians working as independent contractors were the apparent agents of Columbus Regional Hospital.

The employment status of Drs. Jiangming Xu and Donald Harris is key to the medical malpractice complaint filed by Clyde Amburgey following the death of his wife, Moreen. She was admitted to the hospital for revision of her intrathecal pump catheter. While at the hospital after the surgery, she had a seizure and died. Xu was on call for anesthesia and responded to the page concerning Moreen. He consulted with Harris. Both men were not employees of Columbus Regional.

Amburgey wasn’t informed that any care provided to his wife was performed by independent contractors or people not employed by the hospital. He filed a medical malpractice complaint against the hospital, claiming that the two doctors should be deemed as apparent agents of the hospital. He argued on his motion for partial summary judgment that it didn’t matter whether they were independent contractors, but whether the hospital actually informed the Amburgeys about the doctors’ employment status.

The hospital argued that because Amburgey didn’t name Xu or Harris in his complaint and the statute of limitations on any claims against them had run out, there could be no basis for liability against the hospital. The trial court found genuine issues of material fact regarding the claim of apparent agency and denied Amburgey’s motion for partial summary judgment.

The Indiana Trial Lawyers Association filed an amicus brief, arguing the hospital is “imploring this court to create new law.” Its brief said that even when an agent isn’t named in a lawsuit, the agent may still be found to have been negligent, and that is sufficient to make the principal vicariously liable.

The Court of Appeals relied on Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147-153 (Ind. 1999), Restatement (Second) of Agency Section 429, and caselaw from other states to affirm the trial court. Indiana hasn’t addressed this specific issue, but other states have concluded that the running of a statute of limitations with respect to a physician doesn’t preclude a complaint against a hospital on the theory of vicarious liability and apparent authority, Judge Elaine Brown wrote in Columbus Regional Hospital v. Clyde Amburgey, Individually and as Executor of the Estate of Moreen Amburgey, 03A01-1110-CT-450.


 

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  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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