The Idaho Supreme Court recently held in Jones v. HealthSouth Treasure Valley Hospital that Idaho recognizes the doctrine of apparent agency in medical malpractice claims. The patient selected HealthSouth based on the recommendation of her physician and her own tour of the facility. During surgery, an independent contractor performed the autotransfusion services and was alleged, along with two independent anesthesiologists, to have caused a fatal air embolism.

The Idaho Supreme Court held that a "hospital may be found vicariously liable under Idaho's doctrine of apparent authority for the negligence of independent personnel assigned by the hospital to perform support services." While the court did not determine whether apparent agency existed in this particular case, it clarified the elements for apparent authority and reiterated that it need only be based on a reasonable belief rather than reliance. Interestingly, the court observed that the following were relevant to determining apparent authority: (1) the autotransfusion company had an exclusive provider agreement; (2) the hospital was responsible for storing the equipment and providing supplies for the surgery; (3) the hospital paid a flat fee for the contracted services and then billed the patient or insurance company directly for the autotransfusion services; (4) the hospital's consent forms did not indicate that the cell saver technicians were independent contractors; and (5) the hospital provided the cell saver technicians with scrubs that made them indistinguishable from hospital employees.

Based on the court's decision, hospitals should take a closer look at how they disclose their independent contractor arrangements to patients and perhaps require independent contractors to have distinguishable scrubs.