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Is Your ER Doctor an Employee of the Hospital? You May be Surprised

By John Malone

The choice of a hospital emergency department is a potentially life altering choice when you or a loved one is facing a medical emergency.

Hospitals frequently advertise the availability and quality of their emergency departments to draw in new patients; because patients equal revenue. When choosing a hospital emergency department, a numbers of factors might come to mind: the nature of the medical emergency, hospital size, location, rankings, etc.

However, one question that normally does not come up is: who employs the physicians working in the emergency department? This is likely because most people, understandably, assume that the physicians working in the hospital emergency department are employees of the hospital, and that the hospital with all of its resources will stand behind the care being provided by the physicians working in its emergency department. It's only when the emergency department doctor commits medical malpractice and a patient seeks just compensation for their injuries that the patient finds out that the doctor was an independent contractor, not a hospital employee, and the hospital will do everything it can to avoid being held liable for the quality of the care that was provided.

Generally, if you are injured due to the negligence of a company's employee while they are working within the scope of their employment, the company is legally responsible for compensating for those negligently caused injuries. This legal doctrine is called Respondeat Superior. However, if you are injured due to the negligence of an independent contractor working for the same company, the company is not legally responsible for compensating for those injuries.

Because sometimes people deal with individuals without knowing whether they are a company's employee or an independent contractor, there is another legal doctrine termed Ostensible Agency, under which an individual who is not actually an employee (agent) of the company (principal) can be deemed an employee (agent) of the company for the purposes of making that company liable for the negligence of the individual when the negligence occurred while that person was being represented in such a way as to make reasonable people believe that person was an employee of the company.

Oftentimes, plaintiffs in medical malpractice litigation will try to use the doctrine of Ostensible Agency to establish that a hospital should be liable for the malpractice of a physician that took place in the hospital, such as in the emergency department, even when the physician that committed the malpractice is not an actual hospital employee.

In Michigan, the Court of Appeals has said that in order for a plaintiff / patient to establish that a physician was an ostensible agent / employee of a hospital, the plaintiff must show she was dealing with the physician while under the reasonable belief that the physician worked for the hospital; that reasonable belief must have been prompted by some act or failure to act on the part of the hospital; and the patient cannot be negligent themselves. Applying this test, courts have found that a hospital advertising a physician's affiliation with the hospital on its website; supplying a physician with hospital identification and a hospital logo emblazoned laboratory coat to wear while working in the hospital; and allowing the physician to work in a hospital department whose services are advertised directly to the public through billboards and television commercials, is not an ostensible agent because, despite all of the above, the hospital has not done enough to cause the patient to reasonably believe the doctor is a hospital employee.

Whether or not a hospital will be held legally responsible for the malpractice of a physician providing care in its emergency department can have a significant impact on whether an injured patient can receive just compensation. Negligent medical errors in emergency departments can cause devastating injuries, which may be beyond the resources of an individual doctor to compensate for. As a result, if the hospital is able to escape responsibility for the quality of the care being provided in its advertised emergency department, the injured patient is left without adequate compensation.

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