ILNews

Malpractice complaint hinges on claim of apparent agency

Back to TopCommentsE-mailPrintBookmark and Share

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.


 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

ADVERTISEMENT