Apparent Agency in Medical Malpractice | New Maryland Opinion

baltimore U.S. District Court Judge Ellen Hollander issued an interesting ruling today in Lopez-Krist v. Salvagno that deals with actual and apparent agency in the classic context of the independent contractor doctor at the hospital.

This is a tragic case where a 14 year-old boy suffered a broken leg. There was concerns about the blood supply to the leg. They called in an orthopedic doctor who, of course, did not identify himself as an independent contractor.

You really can’t fault the doctor for this, right? He is talking to a parent of an injured boy. They don’t want to hear about the nuances of who the doctor works for. Just get my boy better.

The doctor recommends going in and trying to reduce the fracture and realign the bone. Parent signs informed consent form with the hospital’s name and logo on it that generally makes agency unclear. After the surgery, the boy returned to the hospital and the doctor did not order a CT or an angiogram or seek a vascular consult. There’s more but you know by now what matters. The boy ends up losing his leg.

Both parties filed summary judgment motions on agency.

Interrogatory Goof Up

The hospital argued plaintiffs’ response to agency interrogatory provided nothing to support their contention of an apparent or actual master-servant relationship between the hospital and the orthopedic doctor. Yet plaintiffs came armed with all sort of affidavits and other evidence when it came to be time for the summary judgment motion.

I get the hospital’s point here. There were no facts proffered in support of agency. But, ultimately, the court said defendants knew it was coming so it was really no harm no foul. Was this the right ruling? I’m a big substance over procedure guy so I guess I have to say it was. What is for sure is that the trial court has broad discretion to determine whether plaintiffs deserve a pass on the failure to set forth their case.

Ruling on the Merits

The court rejected both sides’ motions for summary judgment on agency. Judge Hollander cited a ton of law that says that judges really should not be deciding agency on summary judgment because it is really an issue for the finder of fact.

I think the plaintiffs can and will win this at trial and they should. It is really hard to argue that the family would not assume the doctor was “with” the hospital. They might win this issue on directed verdict. But I agree that on these issues it is best to see how the evidence comes in and figure it out from there.

This is an opinion is worth reading for any tort attorney who is dealing with agency issue.

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