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When a sudden or unusual injury or illness occurs, seeking hospital emergency care is a common recourse. According to American Hospital Association statistics, about 100 million emergency department visits occur each year in the United States. Large numbers of Americans have come to rely on hospital emergency departments to provide safe care in urgent, often emotionally charged, circumstances. As we all know, less than optimal conditions in America’s overcrowded emergency rooms can lead to confusion and grave mistakes, from misdiagnosis and improper prescription of drugs, to inappropriate treatment that leads to further injury or even death. A recent report by the Institute of Medicine estimated that medical errors are responsible for at least 44,000 deaths in the United States each year, and perhaps as many as 98,000. Not surprisingly, the report also showed that in hospitals, the highest error rates occur in intensive care units, operating rooms and emergency departments. When patients receive improper care in emergency departments, what options are available to them under Texas law? Obviously, it is possible to sue the doctor, nurse or other health care provider who made the mistake. When the erring health care provider also is an employee of the hospital, the hospital may be sued to gain adequate compensation for the patient or the patient’s loved ones. The situation is murkier, though, when the emergency room patient receives improper care from a medical professional who is an independent contractor, not an actual employee of the hospital. In these cases, the patient can sue the individual health care provider. But to avoid involvement in malpractice suits of this type, hospitals have relied on legal precedent that they are not liable for the mistakes of independent contractors. Nurses are usually hospital employees. But almost all hospital doctors are independent contractors with hospital privileges. This means that in many cases of medical malpractice that occur in hospitals, there is no immediate legal avenue to hold the hospital accountable. However, it is possible to argue successfully that, from the patient’s perspective, an independent contractor providing care in an emergency room setting appears to be an actual employee of the hospital. Under this theory, known as ostensible agency, the hospital may be liable for the independent contractor’s actions as if he or she was an actual employee. But it is important in these cases for plaintiffs’ attorneys to understand that they shoulder the burden of proof. They must aggressively seek evidence to support the ostensible agency claim. Nationally, courts generally have required plaintiffs’ attorneys to show that the patient looked to the hospital rather than to the individual health care provider for care. Naturally, most people who visit emergency rooms are looking to the hospital as a unified entity, and they quite reasonably may presume that everyone working there is part of the hospital. Under emotional or physical stress, patients may not bother to find out the facts. A trip to the emergency room may find a patient and those who accompany him or her in a frantic or hurried state, primarily concerned about receiving care as quickly as possible. UPS AND DOWNS Unlike patients who go to a scheduled doctor’s appointment, emergency room patients may be far less inclined or able to monitor the care they receive. They may not be able to learn much about the individual medical professional administering care. Instead, they instinctively look to the overarching institution to provide safe, quality care. The Texas Supreme Court, in Baptist Memorial Hospital v. Sampson (1998), set forth the elements of ostensible agency. According to the opinion, to hold a hospital responsible for the negligence of an independent contractor, a plaintiff must demonstrate that: 1) the patient had a reasonable belief that the health care provider was the agent or employee of the hospital; 2) this belief was caused by the hospital affirmatively holding out the contractor as its agent or employee or knowingly permitting the contractor to hold himself out as such; and 3) the patient justifiably relied on the representation. The most difficult element to show is the second, that the hospital or health care provider affirmatively acted in such a way that a reasonable person would conclude that the negligence was committed by the hospital’s agent and under its authority. If a hospital knowingly or inadvertently creates the impression that all workers in an emergency room are employees, it may be liable under ostensible agency. Marketing materials that advertise “complete health care services” without indicating the use of outside contractors could make this impression. This impression also could be made by procedural practices. For instance, if a hospital has control over the way medical care is administered by contractors, such as handling billing or determining a patient’s choice of physician, it might make it appear as if a contractor is a hospital employee. USEFUL AVENUE A key case in Texas law showing that a hospital did hold out a contractor as an actual employee is Brownsville Medical Center v. Gracia (1985). The 13th Court of Appeals in Corpus Christi found the hospital liable in the death of a child even though the negligent emergency room doctor was an independent contractor. The record noted that emergency room patients never would ask for a doctor by name, but rather simply ask for a doctor for treatment. Nor was there any way for a patient to know whether emergency room physicians were employees or contractors. Brownsville Medical Center also billed patients directly, even if contractors treated them. Hospitals are now being proactive about clarifying their relationships with independent contractors. Risk management consultants are advising hospitals to review marketing materials, brochures, broadcast and print advertising, and other communications materials to make sure they do not create false impressions about the hospital staff. New interior signs, patient information packets, consent forms, discharge forms and referral lists indicate to patients that emergency room doctors are independent contractors. In some cases, these protections are working. In Valdez v. Pasadena Healthcare Management and Southmore Medical Center (1998), the 14th Court of Appeals in Houston refused to recognize a doctor as the ostensible agent of the hospital when negligence led to the injury of an infant during childbirth. The opinion noted that the parent signed a consent-to-treat form, which indicated that the treating doctor was not an agent or employee of the hospital. The doctor also billed patients directly. Despite ups and downs, ostensible agency can be a potent strategy. As new protections from ostensible agency claims are developed, plaintiffs’ attorneys must examine the facts closely to determine if a hospital has done enough to inform emergency room patients about who will care for them. For the time being, ostensible agency remains a useful and justifiable avenue for holding hospitals at least partially responsible when they do not do enough. Leanna Marchand is a registered nurse and licensed attorney. She is a partner in Smith, Marchand & Kettles in Dallas.

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