Justice Catherine Bartlett
The sole issue was if Bon Secours Community Hospital may be held vicariously liable for the alleged medical malpractice of co-defendant Dr. Harper, an alleged independent contractor. Patient Weed went into labor and was informed to come to the hospital emergency room, where Harper was on-duty. Harper testified she was not a hospital employee, but an independent contractor through an agency, yet was at the exclusive call of the hospital, was given a pager by the hospital and provided a hotel room near the hospital, and was to answer all obstetric calls from the hospital. Thus, the court stated the hospital may be vicariously liable for the acts of a physician who was an independent contractor where the patient presented at the emergency room and the hospital determined how and by whom the patient was seen. While the hospital made a prima facie case that Harper was an independent contractor, both Weed and Harper raised triable issues of fact of whether the hospital may be vicariously liable for Harper’s alleged malpractice under a theory of apparent agency. Hence, the hospital was denied summary judgment.