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Ohio Appeals Court Holds Attending Physician Was State Employee And Agent By Estoppel Of Hospital


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. Vanderpool appealed.

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's surgery.

Vanderpool v. University Hosp., Inc., No. C-020020, 2002 WL 31127525 (Ohio Ct. App. Sept. 27, 2002) (14 pages).

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