It is an established general rule that hospitals are not liable for the malpractice of physicians who are not their employees. It is equally established that there are exceptions to that rule, the two most prominent of which are the ostensible agency theory and agency-in-fact or control theory. The body of law addressing these exceptions is voluminous and has developed some inconsistencies.
One circumstance in which this has occurred is where a patient seeks treatment not from a particular physician, but from the hospital. While it has long been recognized that the hospital is vicariously liable for the physicians it assigns to patients in that situation, some decisions have strictly imposed all of the requirements of ostensible agency. However, this circumstance is not purely one of ostensible agency. Rather, it is a distinct exception that involves aspects of both ostensible agency and agency-in-fact. In essence, the “hospital patient” or “emergency room” exception to the general rule is a hybrid of the two exceptions. This column examines the development of these vicarious liability exceptions.
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