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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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