The New Jersey Appellate Division has held that a hospital that vests a contractor physician with apparent authority may be held liable for the physician's negligence in Estate of Cordero v. Christ Hospital et al., A-1289-07T1.
The Appellate Division reversed the summary judgment granted to the hospital by the trial court and applied a totality of the circumstances test that considers the hospital's actions and inactions that would lead a patient to reasonably believe a physician's care is rendered on behalf of the hospital. When a patient accepts a physician's care under such circumstances, a rebuttable presumption is created that the treatment is on behalf of the hospital and the independent contractor is vested with apparent authority from the hospital.
The court outlined six factors to decide whether a physician is acting under apparent authority:
- Whether the hospital supplied the physician;
- The nature of the treatment, and whether the specialty is typically provided in and an integral part of medical treatment received in a hospital;
- The patient's opportunity to reject the care or select a different physician;
- Whether there were any notices of the physician's independence from the hospital or hospital disclaimers of responsibility for the physician's actions;
- Whether there had been any prior contact between the physician and patient; and
- Whether the patient had any special knowledge about the relationship between the hospital and physician.
In this case, the Appellate Division ruled that there was sufficient evidence that the patient would reasonably believe the treating anesthesiologist was providing care on behalf of the hospital. The anesthesiologist had never met the patient before administering anesthesia, did not disclose her affiliation with the anesthesiology group contracted with the hospital and wore no identification to disclose her employment status.
In light of the Cordero opinion, New Jersey hospitals should consider adopting several measures to ensure independent contractors are not cloaked with the apparent authority to administer care on behalf of the hospital, including:
- Providing name tags or badges for physicians that clearly state their affiliated physician group;
- Requiring physicians involved in the patient's treatment to meet the patient and fully disclose their employment status;
- Providing patients a written disclosure/consent form that states the hospital does not assumes responsibility for the care provided by independent contractors and clearly identifying independent contractor physicians involved in a patient's treatment; and
- Identify the physician group affiliation for each physician on the hospital website.