HLD, v. 30, n. 12 (December 2002)
Ohio Appeals Court Holds Attending Physician Was State
Employee And Agent By Estoppel Of Hospital
Plaintiff Jackie Vanderpool was an obstetrics/gynecology
outpatient at a clinic run by University Hospital, Inc. (Hospital). She saw
various faculty physicians for chronic pelvic pain and it was determined that
she required surgery to remove an ovarian cyst. A resident physician performed
the preoperative assessment and Dr. Duma, an attending physician and state
employee, approved the surgical plan. On the day of surgery, another resident
informed Vanderpool that Dr. Huppert, also a faculty physician, would be
supervising the surgery. However, Huppert had to leave during the surgery, and
Duma finished the procedure. Vanderpool had no contact with Duma prior to the
surgery. While Duma was supervising the surgery, Vanderpool's ureter was cut
and damaged. She filed a complaint in state trial court against Duma, Huppert,
and two Hospital residents, alleging medical malpractice. She also filed a complaint
against the Hospital, a state agency, alleging vicarious liability. Vanderpool
voluntarily dismissed her suit against the physicians because, as state
employees, they were immune from civil liability. The only remaining defendants
were the Hospital and the Foundation of Obstetrics and Gynecology (FOG), which
was a practice corporation for the faculty members of the OB/GYN department.
The trial court granted summary judgment in favor of the Hospital and FOG.
The Ohio Court of Appeals reversed, holding that Duma was the
Hospital's agent by estoppel and that there were genuine issues of material
fact regarding whether Duma was acting within the scope of his employment with
FOG when he supervised Vanderpool's surgery. First, the appeals court held that
the trial court erred in granting summary judgment in favor of the Hospital.
The court stated that, in order to determine whether the Hospital is liable
under the doctrine of agency by estoppel for the negligence of independent
medical practitioners practicing in the Hospital, it must examine whether
"(1) [the Hospital] holds itself out to the public as a provider of
medical services; and (2) in the absence of notice or knowledge to the
contrary, the patient looks to the hospital, as opposed to the individual
practitioner, to provide competent medical care." The appeals court held
that Vanderpool looked to the Hospital, rather than Duma, for her medical care.
The court noted that Vanderpool had no notice or knowledge of the independent
relationship between Duma and the Hospital, and was also unaware that her
treating physicians were residents working under faculty supervision. The
appeals court emphasized that merely informing the patient of the name of the
doctor who will be treating the patient is not sufficient notice. See Clark
v. Southview Hosp. & Family Health Ctr., 628 N.E.2d 46 (Ohio 1994). The
court also noted that Vanderpool did not have an independent doctor/patient
relationship with Duma; she saw different doctors at the clinic and she had no
choice as to who would perform the surgery. In addition, the court rejected the
Hospital's contention that it could not be held vicariously liable for Duma
because he had been found to be immune from civil liability. Instead, the
appeals court found that, in the absence of a statute providing immunity, a
private corporation may be held liable for the tortious acts of its agents. See
Adams v. Peoples, 480 N.E.2d 428 (Ohio 1985).
Next, the appeals court held that the trial court erred in
granting summary judgment in favor of FOG. Although FOG argued that Duma was
acting outside the scope of his employment with FOG when supervising
Vanderpool's surgery, the court noted that the Hospital required all faculty
members in the OB/GYN department to be members of FOG and provided private
medical offices, support staff, and medical equipment for faculty members.
Significantly, the court also noted that FOG paid 85% of Duma's salary, which
resulted in FOG compensating Duma for some of his university-related duties.
Thus, the court concluded that a genuine issue of material fact was raised as
to whether Duma was acting within the scope of FOG's employment during
Vanderpool v. University Hosp., Inc., No. C-020020, 2002
WL 31127525 (Ohio Ct. App. Sept. 27, 2002) (14 pages).