The general rule of vicarious liability is that an employer is liable for the negligence of its employees but is not liable for the negligence of an independent contractor. In the medical profession context, this means that, absent an employment relationship, a doctor’s mere affiliation with a hospital is not sufficient to hold a hospital vicariously liable for the doctor’s negligent conduct. However, the doctrine of ostensible agency serves as an exception to this general rule.
The doctrine of ostensible agency is commonly found in the legal arena of medical practice. This theory applies when a patient comes to a hospital and the hospital selects a doctor to serve the patient. Case law in Nevada dictates that if the hospital selects a doctor and it is reasonable for the patient to assume that the doctor is an agent of the hospital, the hospital can be held vicariously liable. The rationale behind this theory is that if an ostensible agency relationship exists, the doctor has apparent authority to bind the hospital which in turn makes the hospital vicariously liable for the doctor’s actions.
Determining whether an ostensible agency relationship exists is a question of fact for the jury to consider. Typically, the jury is instructed to consider the following:  whether a patient entrusted themself to the hospital;  whether the hospital selected the doctor to serve the patient;  whether the patient reasonably believed that the doctor was an employee or agent of the hospital; and  whether the patient was put on notice that a doctor was an independent contractor.
For example, imagine that someone walks into XYZ hospital to see a doctor about a stomach pain. Upon arrival, the patient signs all necessary documents to be seen by the doctor, including a document with a clause stating, “all physicians of XYZ hospital are independent contractors and are not employees or agents of the hospital.” Next, the patient goes to one of three back rooms, each with a doctor in the room treating patients. The doctor takes a quick look at the patient who just walked in and determines that the patient is fine and only needs bed rest. However, the next day, the patient is ambulated to the emergency room at XYZ hospital and diagnosed with a stomach ulcer. Naturally, the patient sues the doctor who saw her the day before and XYZ hospital under an ostensible agency relationship theory.
In this scenario, it’s likely that the court would hold in the patient’s favor. This is because it’s likely that the patient reasonably believed that the doctor was an employee of the hospital, the patient was given a physician to treat her, and the patient did in fact entrust herself to the hospital. All the while, although the documents stated that the physicians were not employees or agents, it’s likely that the fact that the patient would have reasonably believed that the doctors were employees of the hospital, the court would find in favor of the patient under the ostensible agency theory.
Thanks to a personal injury lawyer with our friends at Eglet Adams for their insight on vicarious liability and the ostensible agency theory. If you have suffered medical malpractice but are not sure if the doctor, hospital, or someone else is liable, reach out to a lawyer near you for help.