Generally, yes. A hospital is responsible for the negligence of its physicians for patients treated in the emergency room, pursuant to a New York case, Mduba v. Benedictine Hospital, 52 A.D.2d 450 (3rd Dep’t 1976), under the doctrine of “apparent authority” in medical malpractice cases.

In Mduba, the patient was treated in an emergency room after a car accident and died after a physician failed to obtain a blood sample so that a transfusion could be ordered in a timely fashion. Despite the fact that the emergency medicine physician was not an employee of the hospital, the court in Mduba held that the hospital was responsible for the negligence of the doctors it furnished. The court in Mduba stated, “such patients are not bound be secret limitations contained in a private contract between the hospital and the doctor.”

The crux of the Mduba decision is that patients do not know that emergency medicine doctors in a hospital are independent contractors and not employees of the hospital. Even though the physicians are not paid employees of the hospital, the hospital is responsible for the negligence of hospital-based physicians who appear to be employed by the hospital. This is the doctrine of “apparent authority” in medical malpractice law and this doctrine is followed by the majority of states in the U.S.

Under the doctrine of “apparent authority”, the hospital is responsible for the negligence of the hospital-based physician, i.e., emergency medicine physicians, pathologists and radiologists, unless it gives the patient notice that the doctor is an independent contactor and is not an employee of the hospital. Hospitals are increasingly attempting to place patients on notice that emergency medicine physicians are not employees of the hospital in an attempt to limit their liabilty for the physicians’ negligence.

Good Samaritan Hospital in Nyack, New York requires all of its patients sign a document reading, “Dear Emergency Department Patient: The Emergency Doctor is a private physician trained in emergency medicine. The Doctor is not salaried by the Hospital.” The Good Samaritan Hospital is attempting to put patients on notice that the emergency medicine physicians are not paid employees of the hospital and with such notice, the hospital hopes to eliminate its responsibility for the physicians’ negligence.

Other hospitals have large signs posted near the entrance to the emergence department reading, in sum or substance, “The Emergency Medicine Physicians are not employees of the Hospital.”

There have been few cases deciding whether such notices to patients eliminate the liability of the hospital for the negligence of the emergency medicine physicians. You can bet, however, that hospitals will increasingly post signs and warnings in the waiting room of the emergency department and on documents signed by patients when they arrive at the hospital.

If you have questions or want more information about the doctrine of “apparent authority” in medical malpractice cases, I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can send me an e-mail at jfisher@fishermalpracticelaw.com . You are always welcome to join my mailing list for my newsletter, Your Malpractice Insider, which provides monthly tips about avoiding medical malpractice.