by: David J. Cutshaw, Attorney
When a patient goes to a hospital and is attended by doctors like radiologists or anesthesiologists whom they have never met, is the Hospital liable or responsible for such doctors’ negligence? For example, if a patient goes to the hospital for a biopsy, the tissue removed is then sent to a pathologist (a doctor who examines and tests the tissue) who fails to detect that the removed tissue contains cancer. Is the Hospital responsible for the negligent failure of the pathologist to diagnose cancer? If the patientsurgeons.jpg is scheduled for surgery and then is assigned an anesthesiologist whom the patient has never met, is the hospital responsible for his or her negligence? If the patient goes to an emergency room and is assigned an emergency room doctor who the patient has never seen before, is the hospital responsible for his or her negligence?

The Indiana Court of Appeals, in the case of Community Regional Hospital v. Amburgey, recently discussed a situation where a patient went to the hospital to have an outpatient surgery to repair a pain pump catheter. After the surgery, the patient’s condition deteriorated, and an anesthesiologist was called to treat the patient’s complications after that minor surgery, but the patient died. The anesthesiologist was an employee of a separate anesthesiology group and not an employee of the hospital. The family of the patient claimed that the anesthesiologist was negligent in treating the patient, but did not sue the anesthesiologist directly. The Hospital argued that the anesthesiologist was not an employee, but an independent contractor such that the hospital was not responsible for his care. The hospital also argued that because the patient’s family did not sue the anesthesiologist within the two-year time limit for filing a medical malpractice case, the hospital could not be liable because the anesthesiologist could not be liable to the patient.
Relying on a 1999 Indiana Supreme Court decision in Sword v. NKC Hospitals, Inc., 714 N.E. 2d 147-153 (Ind. 1999), the Court of Appeals stated that a Hospital is responsible for the acts of a physician working in the hospital (here, the anesthesiologist) if the hospital does not give meaningful (usually written) notice to the patient that the doctor is not employed by the hospital, or if there is an emergency and the patient has no choice to select another doctor. If the patient actually knew (or should have known) that the doctor was not an employee of the hospital or not affiliated with the hospital, then the hospital will not be liable for the doctor’s negligence. The doctor is the apparent agent of the hospital if the patient did not know that the doctor was not an employee of the hospital.
The Court of Appeals also held that it was not necessary that the patient sue the anesthesiologist individually if the anesthesiologist was the apparent agent of the hospital–again the hospital did not notify the patient that the anesthesiologist was an employee of a separate entity or group. If the anesthesiologist was an apparent agent of the hospital, then the hospital is liable for the anesthesiologist’s acts even if he is not actually an employee of the hospital and the failure to sue the anesthesiologist directly does not extinguish the patient’s claim.
Many times, patients sign documents when admitted to a hospital that state that the patient may be treated by doctors who are independent contractors and are not employees of the hospital. These papers that patients sign usually do not specifically tell the patient which doctors are employees of the hospital and which are not. Whether the hospital complies with the notice requirements to inform the patient that a particular doctor is not an employee can often be an interesting issue when a medical malpractice case arises.