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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

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