A Consent Form Defeats a Claim for Apparent Authority

By Adam P. Chaddock

Those who routinely represent hospitals know how difficult it is to obtain summary judgment or directed verdict on the issue of apparent agency, even where there is a consent form clearly setting forth that the physicians who treated plaintiff are not agents or employees of the hospital. However, in the recent decision of Lamb-Rosenfeldt v. Burke Medical Group, the trial court granted summary judgment to the defendant hospital and the appellate court affirmed.

In Lamb, plaintiff was a patient of Dr. Burke who provided care to Lamb at the doctor’s office and at St. James Hospital. Lamb received treatment from Burke at St. James Hospital on seven occasions, and on each occasion, he signed a one page consent form. The consent form contained four sections, including a section entitled “Independent Contractor Physician Disclosure Statement.” This particular section set forth that:

1. I understand that St. James Hospital utilizes independent physicians and consultants to perform services for patients at its hospitals;
2. None of the physicians who will attend to me at the hospital are agents or employees of the hospital;
3. [The physicians] are legally liable for the physicians’ acts.

The consent form ended with an acknowledgment by the patient that he had read and understood the consent. Eventually, Lamb was diagnosed with recurrent lung cancer, and after he passed away, his administrator filed suit against Dr. Burke and St. James, alleging that Dr. Burke failed to make the diagnosis in a timely manner. St. James Hospital was also sued for the acts of Dr. Burke, under an apparent agency theory.

To support the claim that St. James Hospital appeared to be the employer of Dr. Burke, Plaintiff’s family testified in depositions that they had performed an internet search of Dr. Burke before the decedent began treating with Dr. Burke. That internet search demonstrated that Dr. Burke was chief of staff at St. James Hospital. St. James filed a motion for summary judgment, arguing that Lamb was a long time patient of Dr. Burke’s, and therefore, knew or should have reasonably known that Dr. Burke was not employed by St. James Hospital. Further, based upon the consent form signed by Lamb at least seven times, Lamb knew or should have reasonably known that Dr. Burke was not employed by St. James Hospital. The trial court granted the motion for summary judgment.

On appeal, the appellate court noted that the for a hospital to be liable under apparent authority, plaintiff must establish that:

1. the hospital or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital;
2. where the acts of the agent create the appearance of authority; the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and
3. the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.

The focus of the first two “holding out” elements is what the patient knew or should have known. The focus of the third “reliance” element is whether plaintiff sought care from the hospital or merely sought a location for his or her physician to provide medical services.

While a consent form is not dispositive of the agency issue, it is still an important factor. It is unlikely that a patient who signs such a form can reasonably believe that his treating physician is an employee or agent of the hospital when the consent form contains language to the contrary. The appellate court also noted that the location of the independent physician disclosure in a conspicuous location on the form is important. Lamb signed the disclosure at least seven times, and each time, the independent physician disclosure was immediately above the signature line, rather than buried in the middle of the form. The clarity of the consent form should have made Lamb aware that Dr. Burke was an independent physician, not an agent or employee of the hospital. The appellate court also noted that Dr. Burke’s position as chief of staff was insufficient to maintain the apparent agency claim, as Lamb frequently treated with Dr. Burke at Burke’s office and because Lamb was never notified of Dr. Burke’s administrative title at the hospital. Finally, there was no evidence that Lamb relied upon the hospital to provide medical staff and service. Rather, the evidence clearly demonstrated that Lamb relied upon the hospital only to provide a location for her own chosen physician, Dr. Burke, to provide medical services. As a result, the apparent agency claim could not stand.

Originally published in the Spring 2012 edition of Quinn Quarterly.