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.

History

The earliest decision finding vicarious liability for malpractice by a non-employee was Hannon v. Siegel-Cooper, 167 N.Y. 244 (1901). The plaintiff was injured during treatment rendered by a dentist at the defendants' department store. The store “represented and advertised itself as carrying on the practice of dentistry in one of its departments.” The store owners appealed from a verdict for the plaintiff. Citing “the general doctrine that a person is estopped from denying his liability for the conduct of one whom he holds out as his agent against persons who contract with him on the faith of the apparent agency,” the court held that “the plaintiff had a right to rely not only on the presumption that the defendant would employ a skillful dentist as its servant, but also on the fact that if that servant, whether skillful or not, was guilty of any malpractice, she had a responsible party to answer therefor in damages.”

A half-century later, in holding that hospitals may be liable under respondeat superior for physicians and nurses they employ, the court observed in Bing v. Thunig, 2 N.Y.2d 656 (1957) that “[t]he conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact,” and that “the person who avails himself of 'hospital facilities' expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility.”