Williams v. Dimensions Health Corp.

Terence Williams v. Dimensions Health Corporation No. 42, September Term 2021 Medical Malpractice – Vicarious Liability – Hospital Emergency Room – Apparent Agency. Under the doctrine of apparent agency, an entity may be found vicariously liable to a third party for the negligence of its apparent agent if (1) the entity represents, or acquiesces in the appearance, that an individual is its agent; (2) the third party relies on that appearance to the party’s detriment; and (3) the third party’s reliance is reasonable under the circumstances. There was sufficient evidence to support a jury verdict finding a hospital vicariously liable for the negligence of a surgeon in its trauma center when (1) the hospital had obtained designation under State law of its emergency room as a trauma center, which required that it have a trauma surgeon available to treat serious injuries sustained as a result of emergencies; (2) emergency medical services personnel dispatched to the scene of a serious car accident relied on that designation to transport the victim of the accident to that trauma center in accordance with State regulations; and (3) there was no evidence that the victim was informed in any way at the trauma center that the surgeon was an independent contractor, as opposed to an employee, of the hospital. Even if forms or signs at the trauma center had described the formal contractual relationship of the surgeon with the hospital, such notice would not have been timely and meaningful so as to negate the apparent agency relationship in a situation involving a patient in distress as a result of a serious car accident.

Circuit Court for Prince George’s County IN THE COURT OF APPEALS Case No. CAL17-35481 Argued: March 8, 2022 OF MARYLAND No. 42 September Term, 2021 TERENCE WILLIAMS V. DIMENSIONS HEALTH CORPORATION *Getty, C.J., Watts Hotten Biran Gould Raker, Irma S. (Senior Judge, Specially Assigned), McDonald, Robert N. (Senior Judge, Specially Assigned) JJ. Opinion by McDonald, J. Getty, C.J., and Biran, J., dissent.

Filed: July 28, 2022 *Getty, C.J., now a Senior Judge, Pursuant to the Maryland Uniform Electronic Legal Materials participated in the hearing and conference of Act (§§ 10-1601 et seq. of the State Government Article) this this case while an active member of this document is authentic. Court. After being recalled pursuant to 2023-01-17 16:02-05:00 Maryland Constitution, Article IV, §3A, he also participated in the decision and adoption of this opinion. Gregory Hilton, Clerk This case concerns whether a hospital is vicariously liable for a surgeon’s negligence in treating a patient in the hospital’s emergency facility, which had been specifically designated for treating patients with serious and life-threatening injuries on an emergency basis.

The patient, Petitioner Terence Williams, had suffered serious injuries as a result of a late night motor vehicle crash and had been transported by ambulance to the trauma center at the Prince George’s Hospital Center of Respondent Dimensions Health Corporation (“the Hospital”). He suffered further injuries when the surgeon who treated him there failed to exercise the standard of care expected of trauma surgeons. Mr. Williams sued both the surgeon and the Hospital in the Circuit Court for Prince George’s County. The Hospital contended that the surgeon, like other staff at its trauma center, was an independent contractor rather than an employee of the Hospital and that the Hospital therefore was not responsible for his conduct in treating Mr. Williams.

However, under prior decisions of this Court, as well as decisions by other courts around the country, a hospital may be vicariously liable for the negligence of a health care provider who staffs the hospital’s emergency room, regardless of the formal relationship between the provider and the hospital, under the doctrine of apparent agency. At the trial of this case, the jury returned a verdict finding that the surgeon was negligent and directly liable, that the surgeon was an agent of the Hospital, and that the Hospital was vicariously liable for that negligence. The Hospital moved for judgment notwithstanding the verdict on the ground that there was insufficient evidence to show that Mr. Williams had believed that the surgeon was an agent of the Hospital when he was brought there by the ambulance. The Circuit Court granted that motion and the Court of Special Appeals affirmed that ruling.

For the reasons set forth in this opinion, we disagree and reverse the judgment of the intermediate appellate court. A court may not overturn a jury verdict if there is sufficient evidence, however slight and viewed in the light most favorable to the prevailing party, to support the verdict. In this case, there was ample evidence introduced at trial that, if credited by the jury, supported the jury’s finding that the surgeon was the apparent agent of the Hospital. I Background A. Hospital Emergency Rooms 1.

Generally An emergency room, or emergency department, as the name implies, is the part of a hospital that specializes in emergency medicine – the acute care of patients who appear at the facility without prior appointment, sometimes by ambulance. As a result of the nature of the care it provides, an emergency room will often operate around the clock. An emergency room must be prepared to provide treatment for a broad spectrum of unforeseen illnesses and injuries, many of which are serious and life-threatening.1 Closely related to emergency rooms are trauma centers where surgeons who specialize in trauma care treat patients with injuries from incidents such as serious motor vehicle crashes. Emergency 1 See American College of Emergency Physicians, Definition of Emergency Medicine, https://www.acep.org/patient-care/policy-statements/definition-of-emergency- medicine/, available at https://perma.cc/D4NX-5L9E.

In some geographic areas, residents without other access to health care may rely on hospital emergency rooms for their primary care. 2 rooms in hospitals that receive payments from Medicare must provide appropriate emergency treatment to all individuals who seek it, regardless of ability to pay, among other things.2 2. Designations of Emergency Facilities in Maryland To coordinate the delivery of emergency and trauma care to patients in distress in Maryland, the General Assembly has created the Maryland Institute for Emergency Medical Services Systems (“MIEMSS”). Maryland Code, Education Article (“ED”), §13- 501 et seq.; see also COMAR, Title 30. MIEMSS is charged with “coordination of all emergency medical services” in the State.

ED §13-504(a). According to MIEMSS, there are 48 hospital emergency departments in the State. See MIEMSS, Hospitals – Introduction.3 “It is imperative that all seriously ill and injured patients be delivered in a timely manner to the closest appropriate facility.” Id. MIEMSS has developed a trauma and emergency medical system (“EMS”) to ensure “that the patient get[s] to the right facility to receive the right care through the use of statewide medical protocols for EMS clinicians.” Id.

For that purpose and pursuant to its statutory authority, MIEMSS has designated nine trauma centers and specialty referral centers. Id.; see also ED §13-509; COMAR 30.08.02. MIEMSS classifies trauma centers into four categories, according to the availability of physicians and resources at the particular location. See 2 Emergency Medical Treatment and Active Labor Act (1986), 42 U.S.C. §1395dd. 3 Available at https://www.miemss.org/home/hospitals, https://perma.cc/XZ5H- DE2G. 3 COMAR 30.08.02.01; see also https://www.miemss.org/home/hospitals/trauma-centers.4 Pertinent to this case, a Level II trauma center must satisfy various criteria, including having a trauma surgeon available in the hospital and an orthopedic surgeon on-call at all times.

COMAR 30.08.05.09 Under the MIEMSS regulations, a hospital applies for an appropriate designation for its emergency facility. COMAR 30.08.02.03. B. Agents – Actual and Apparent The common law concept of agency applies in various contexts in Maryland law. This Court has defined the concept as “the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” Green v. H & R Block, Inc., 355 Md. 488, 503 (1999) (quoting Restatement (Second) of Agency, §1); see also Restatement (Third) of Agency, §1.01 (“Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.”).

The existence of an agency relationship depends on the facts of the particular relationship; labels are not dispositive. See Restatement (Third) of Agency, §1.02 (“Parties’ Labeling and Popular Usage Not Controlling”). For example, an actual agency relationship may exist even as to one labeled an “independent contractor.” Restatement (Second) of Agency §14N & comment a (“‘[I]ndependent contractor’ is a term which is antithetical to the word ‘servant’, although not to the word ‘agent’”.). 4 Available at https://perma.cc/JDQ9-6NZ3. 4 Even when the legal definition of actual agency is not satisfied, the parties may still have an “apparent agency” relationship – sometimes referred to as “ostensible agency” or “agency by estoppel.” While the existence of an actual agency relationship depends in part on the perspective of a reasonable agent, the existence of an apparent agency relationship depends in part on the perspective of a reasonable third party. See Bradford v. Jai Med.

Sys. Managed Care Organizations, Inc., 439 Md. 2, 18 (2014); Restatement (Third) of Agency §2.03 (defining “apparent authority” as “the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations”). This doctrine prevents a principal from “choos[ing] to act through agents whom it has clothed with the trappings of authority and then determin[ing] at a later time whether the consequences of their acts offer an advantage.” Restatement (Third) of Agency §2.03, comment c. C. Liability of Hospital for Actions of Emergency Room Staff as Apparent Agents A hospital can have a variety of formal employment or contractual relationships with the health care professionals who staff the hospital.

See Marah Short et al., Baker Institute for Public Policy of Rice University, The Integration and De-Integration of Physicians and Hospitals over Time at 3 (Jan. 2017) (describing four models of employment or contractual relationships of hospitals with physicians).5 The use of independent contractors is more prevalent in emergency medicine than in any other 5 Available at https://scholarship.rice.edu/bitstream/handle/1911/94097/CHB-pub- PHITrends-012417.pdf; https://perma.cc/Q9J5-QV76. 5 medical specialty. See Carol K. Kane, Updated Data on Physician Practice Arrangements, Am. Med. Ass’n Policy Research Perspectives at 8 (2019)6 (noting that, in emergency medicine, “more than one-quarter of physicians were independent contractors, a share that was more than 10 percentage points higher than that of any other specialty”).

A recent trend has been for hospitals to “outsource” the operation of the emergency room to an independent entity entirely.7 One issue raised by a hospital’s use of independent contractors rather than employees to staff its emergency room is whether the use of independent contractors changes the hospital’s vicarious liability for any negligence by its emergency room staff in the treatment of patients. Substantial case law around the country, as well as two decisions of this Court, have assessed such liability under the common law doctrine of apparent agency. 1. Maryland Case Law This Court has previously had two occasions to address a hospital’s vicarious liability based on apparent agency for the negligence of physicians staffing its emergency room. In both cases, the hospital contended that it was not vicariously liable because the physicians staffing its emergency room were independent contractors.

In both cases, the 6 Available at https://www.ama-assn.org/system/files/2019-07/prp-fewer-owners- benchmark-survey-2018.pdf; https://perma.cc/NQ39-4RBW. 7 See Robert Derlet, et al., Corporate and Hospital Profiteering in Emergency Medicine: Problems of the Past, Present, and Future, 50 J. Emergency Medicine 902, 903 (2016), https://www.jem-journal.com/action/showPdf?pii=S0736-4679%2816%2900007- X, available at https://perma.cc/S2R2-6GVX. 6 Court concluded that there was sufficient evidence to establish that those physicians were apparent agents of the hospital, even if they were not employees or actual agents of the hospital. Mehlman v. Powell, 281 Md. 269 (1977); Debbas v. Nelson, 389 Md. 364 (2005), aff’g 160 Md. App. 194 (2004). Mehlman In Mehlman, a man experiencing shortness of breath and other discomfort initially consulted a specialist recommended by his primary care physician. The specialist failed to perform a standard test that would have revealed a treatable condition.

That condition worsened over the course of several months. One day, when the patient was unable to get out of bed and the specialist was unreachable, he was taken to a hospital emergency room. The physician staffing the emergency room ordered several tests, but misread the electrocardiogram and failed to realize that the patient was suffering from a life-threatening condition. The patient was released from the emergency room and died shortly thereafter. 281 Md. at 271 .

The wife and children of the patient sued the specialist, the emergency room doctor, and the hospital. At trial, the plaintiffs asserted that the hospital was vicariously liable for the negligent acts of the emergency room doctor who, the plaintiffs argued, was the hospital’s actual or apparent agent. The hospital countered that the physicians in its emergency room were independent contractors and that it was not vicariously responsible for their actions. After the trial court denied the hospital’s motion for a directed verdict, the jury returned a verdict in favor of the plaintiffs against the hospital and other defendants, and the trial court entered judgment on that verdict. 281 Md. at 271-72 . 7 On appeal, this Court assumed that there was no employer-employee relationship between the hospital and the emergency room doctor that would make him the hospital’s actual agent. 281 Md. at 272-73 .

Instead, the Court looked to the common law doctrine of apparent agency. It noted its approval in a prior case, outside of the medical context, of the articulation of that doctrine in §267 of the Restatement (Second) of Agency. Id. at 273. The Court then addressed the sufficiency of the evidence to support the jury’s determination that the hospital was vicariously liable for the emergency room doctor’s negligence.

The Court noted that the record contained various facts that gave the appearance that the physician was an agent of the hospital, such as the proximity of the emergency room to the hospital, the absence of any signage indicating otherwise, and the general business of the hospital in providing health care to the community. 281 Md. at 274 . “The Hospital … is engaged in the business of providing health care services. One enters a hospital for no other reason…. [The patient] obviously desired medical services and equally obviously was relying on [the Hospital] to provide them.” Id. It noted that “all appearances suggest and all ordinary expectations would be that the Hospital emergency room, physically a part of the Hospital, was in fact an integral part of the institution.” Id. Finally, the Court observed that “[i]t is not to be expected, and nothing put [a patient] on notice, that the various procedures and departments of a complex, modern hospital … are in fact franchised out to various independent contractors.” Id.

The Court concluded that these factors amounted to a representation by the hospital that the staff in the emergency room were its employees and the hospital therefore was liable for the negligent actions of the emergency room staff as if they were employees. Id. 8 at 275. Accordingly, the Court held that a factfinder could find the hospital vicariously liable for the emergency room doctor’s negligence under an apparent agency theory. Mehlman was one of the earliest cases in the country that, in applying the doctrine of apparent agency in malpractice cases involving emergency room staff, looked to the nature and mission of a hospital, the general expectations of the public and patients in particular, and the extent to which a hospital dispelled those expectations.

Many of the subsequent cases in other jurisdictions cited and relied on Mehlman. Debbas More than two decades later, the Maryland appellate courts again considered a hospital’s vicarious liability for the negligent actions of its emergency room staff. In Debbas, a woman experiencing weakness and fatigue visited a hospital emergency room. The emergency room doctor diagnosed her as having mild anemia, prescribed some medication, and advised her to follow up with her primary care physician.

The symptoms persisted. After seeing her own physician, she returned a few days later to the emergency room where she was treated by several doctors, but died later that evening. 389 Md. at 367 . Her survivors brought a malpractice action against the doctors and the hospital. The hospital asserted that the emergency room physicians were independent contractors.

The circuit court granted the hospital’s motion for summary judgment on the ground that the plaintiffs had failed to make a prima facie showing of “apparent authority.” 389 Md. at 370 . 9 On appeal, the Court of Special Appeals disagreed, looking to §267 of the Restatement (Second) of Agency and Mehlman. The intermediate appellate court quoted language in the hospital’s medical consent form that referred to the physicians as “staff” of the hospital. It also noted that one of emergency room doctors was the president of the medical staff and chief of surgery at the hospital. Nelson v. Debbas, 160 Md. App. 194, 212 (2004), aff’d, 389 Md. 264 (2005).

The court concluded that, taken together, these facts created a genuine dispute of material fact regarding an apparent agency relationship between the physicians and the hospital. Accordingly, the circuit court should not have awarded summary judgment in favor of the hospital. Id. at 213.8 In discussing the apparent agency issue, the court observed that “[i]t would be absurd to expect that an emergency room patient, with no particular sophistication about the operation and management of hospitals or medical clinics, should inquire into who is, and who is not, an employee of the institution, rather than an independent contractor.” Id. at 211-12. This Court affirmed the decision of the Court of Special Appeals, relying on the same reasoning. 389 Md. at 384-86. 8 The Court of Special Appeals had previously reached the same conclusion in another case in the same procedural posture involving a hospital’s contention that it could not be vicariously liable for negligent acts of its emergency room staff because they were independent contractors.

See Hunt v. Mercy Medical Center, 121 Md. App. 516, 544-48 (1998) (“[T]he patient could properly assume that the doctors and staff of [the hospital] were acting on [its] behalf…. [The patient] is not necessarily bound by the limitations that may be contained in a private contract between [the hospital] and [its physicians].”). 10 2. The Restatement Provisions Relating to Apparent Agency Agency Restatement In both Mehlman and Debbas, this Court looked to §267 of the Restatement of Agency for guidance. That section provides: One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such. Restatement (Second) of Agency, §267 (“Agency §267”).9 In a later case, the Court identified three elements to this articulation of the concept of apparent agency: (1) Whether the apparent principal created, or acquiesced in, the appearance that an agency relationship existed.

(2) Whether the plaintiff believed that an agency relationship existed and relied on that belief in seeking the services of the apparent agent. (3) Whether the plaintiff’s belief and reliance were reasonable. 9 The Restatement (Third) of Agency defines a similar concept, with similar elements, under the rubric of “apparent authority,” which may be possessed by both agents and non-agents: “Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.” Id., §2.03. 11 Bradford, 439 Md. at 18.10 At the risk of excessive alliteration, we shall refer to these elements as the representation element, the reliance element, and the reasonableness element. In Mehlman and Debbas, in the context of physicians staffing a hospital emergency room, the Court looked to the nature of a hospital (“One enters a hospital for no other reason…”) for the representation element and looked to “all appearances” and “all ordinary expectations” for the reliance and reasonableness elements. The only question as to the reasonableness element was whether there was something that “put [the patient] on notice” that the emergency room staff were not agents of the hospital.

With respect to the latter question, the burden was on the hospital to dispel “all ordinary expectations” as it would be “absurd” to expect a patient in distress to sort out the complex and sophisticated contractual arrangements of the hospital with its emergency room staff on the way to the operating table. Torts Restatement The Restatement of Torts also sets forth a similar test for the vicarious liability of an independent contractor, although not in the same language as Agency §267: One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being 10 Bradford did not involve a patient seeking emergency care from a physician at an emergency room of a hospital. In that case, a woman obtained care from a podiatrist who participated in the network of a managed care organization (“MCO”) that financed health care services for her as a recipient of State Medicaid benefits. The Court held that there was insufficient evidence of any manifestation by the MCO suggesting that the podiatrist worked for the health care insurer. 439 Md. at 22 .

Thus, even if the patient had a subjective belief that the podiatrist was the agent of the MCO, that belief was not objectively reasonable. 12 rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants. Restatement (Second) of Torts, §429 (“Torts §429”). No appellate decision in Maryland directly construes this articulation of vicarious liability. Like Agency §267, as applied in Mehlman and Debbas, Torts §429 looks to the appearance of a relationship that would result in a reasonable belief by a third party that an independent contractor was an employee (“servant” in the antiquated language of the Restatement) of the apparent principal at the time the contractor rendered services to the third party.

As we shall see in the next section of this opinion, courts in other states have looked to both of these articulations of apparent agency, sometimes in tandem, to determine whether a hospital is vicariously liable for the negligence of emergency room staff who are independent contractors rather than hospital employees. 3. Case Law from Other Jurisdictions In looking to Agency §267 and Torts §429 (and, in many instances, Mehlman) for guidance on how to decide whether a hospital is vicariously liable for negligent acts of emergency room staff as apparent agents of the hospital, courts in other jurisdictions have looked to the various factors that can be grouped according to the three elements of apparent agency: (1) representation – the role of the hospital in creation of the appearance of an agency relationship; (2) reliance – the understanding of the patient or others that an 13 agency relationship existed; and (3) reasonableness – any effort by the hospital – and the meaningfulness of that effort – to negate the appearance of an agency relationship.11 (1) Representation – creation of the appearance of an agency relationship • A hospital holds itself out to the public as providing a particular service – i.e., emergency services – even if the holding out is “general and implied.” A hospital can provide that service only through its health care professionals (regardless of the particular employment relationship they may have with the hospital). Pamperin v. Trinity Memorial Hospital, 423 N.W.2d 848, 849, 854-55 (Wis. 1988) (citing Mehlman and looking to Agency §267 and Torts §429); Clark v. Southview Hospital & Family Health Center, 628 N.E.2d 46 , 53 (Ohio 1994) (citing Mehlman and looking to Agency §267 and Torts §429); Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 151 (Ind. 1999) (looking to Agency §267 and Torts §429); Hardy v. Brantley, 471 So.2d 358, 371 (Miss. 1985) (looking to Torts §429)12; Mejia v. Community Hospital, 99 Cal.App.4th 1448, 1453-54 (Cal. Ct. App. 2002) (discussing “national trend”).

(2) Reliance – nature of the patient’s understanding • A key factor is whether the patient looked to the hospital or the particular physician for treatment. Grewe v. Mt. Clemens General Hospital, 273 N.W.2d 429, 433 (Mich. 1978) (“the critical question is whether the plaintiff, at the time of his admission … was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as the situs where his physician would treat him …”); Capan v. Divine Providence Hospital, 430 A.2d 647, 649 (Pa. Super. 1980) (looking to Torts §429 and noting “a likelihood that patients will look to the institution rather than the individual physician for care”); Sword, supra, 714 11 See Kenneth S. Abraham & Paul C. Weiler, Enterprise Medical Liability and the Evolution of the American Health Care System, 108 Harv.L.Rev. 381, 386-89 & n.25 (1994) (noting that, by the mid-1990s, courts in 20 states had relied on Agency §267 and Torts §429 in addressing the issue of apparent agency in an emergency room context). 12 The Mississippi court later indicated that the doctrine of apparent agency did not apply in a suit against a public institution in Mississippi, given the limited statutory waiver of sovereign immunity in that state.

Brown v. Delta Regional Medical Center, 997 So.2d 195 (Miss. 2008). 14 N.E.2d at 151 (noting that many courts apply “a less subjective form of reliance or even to presume reliance absent any evidence that the patient knew or should have known that the physician was not an employee of the hospital”). • When a patient taken to an emergency room is unconscious or when someone other than the patient makes the decision to take the patient to an emergency room, the element of reliance can be satisfied by the decision of EMS personnel or others to take the patient to the hospital to seek care from the hospital rather than a specific physician. Monti v. Silver Cross Hospital, 637 N.E.2d 427, 430 (Ill. App. 3 Dist. 1994); Golden v. Kishwaukee Community Health Services Center, 645 N.E.2d 319, 321 (Ill. App. 1 Dist. 1994); North Georgia Medical Center v. Stokes, 517 S.E.2d 93 (Ga.

App. 1999); Paintsville Hospital Co. v. Rose, 683 S.W.2d 255, 258 (Ky. 1985). (3) Reasonableness – meaningfulness of any effort to negate the appearance • In most cases, the various factors concerning apparent agency resolve into one issue – whether the patient had reason to know that the physician was not an agent of the hospital. Mejia, supra, 99 Cal.App.4th at 1454 . • Absent specific notice, individuals who seek treatment in emergency rooms are unlikely to know the employment or contractual status of the professionals who work there. Pamperin, supra, 423 N.W.2d at 856 ; Clark, supra, 628 N.E.2d at 53. • Any notice that an emergency room physician is an independent contractor that is designed to allow the hospital to avoid vicarious liability must be made in a meaningful way at a meaningful time – i.e., when it can be a factor in a patient’s choice to obtain treatment at the hospital.

Sword, supra, 714 N.E.2d at 152-53 (“meaningful” and timely notice may resolve two issues of representation and reliance, but even written notice may not suffice if the patient had an inadequate opportunity to make an informed 15 choice); Clark, supra, 628 N.E.2d at 54 & n.1 (informing patient after arrival at emergency room is too late to allow informed choice).13 • Notice provided only in a written consent form may be insufficient. Boren v. Weeks, 251 S.W.3d 426, 437 (Tenn. 2008) (looking to Torts §429; holding that notice of physician independent contractor status in second half of a paragraph in three-page electronic consent form that was seldom explained to patients and that may not have been printed out was not sufficient basis for finding notice as a matter of law); Simmons v. Tuomey Regional Medical Center, 533 S.E.2d 312, 320 (S.C. 2000) (a hospital may not escape liability for emergency room doctor’s negligence by giving last- minute notice of independent contractor status through admission forms or signs; looking to Torts §429 and Agency §267). The Ohio Supreme Court synthesized the application of the common law doctrine of apparent agency in the case law (including Mehlman) and the restatements when a patient in distress is brought to an emergency room. It stated: “[T]he element of representation is satisfied when the hospital holds itself out to the public as a provider of medical services, and the element of reliance is satisfied if the patient looks to the hospital, rather than a specific physician, to provide [the patient] with medical care. … The public, in looking to the hospital to provide such care, is unaware of and unconcerned with the technical complexities and nuances surrounding the contractual and employment arrangements between the hospital and the various medical personnel operating therein. 13 By contrast, notice has been deemed sufficient in a situation where it was prominently made in a non-emergency situation.

See Peter v. Vullo, 758 S.E.2d 431 , 439- 40 (N.C. App. 2014) (consent forms for scheduled surgery that together included, in large print above patient signature line, that specific physicians were independent contractors and explicitly stated that hospital would not be liable for their action or inaction provided sufficient notice). 16 Indeed, often the very nature of a medical emergency precludes choice.” Clark, supra, 628 N.E.2d at 53. This is not an exhaustive summary of the cases in other jurisdictions, but it is a representative sample of the reasoning of the vast majority of cases dealing with the question of a hospital’s vicarious liability for negligent actions or omissions of emergency room staff under the doctrine of apparent agency.14 II Facts and Proceedings A. The Accident, the Transport, and the Treatment at the Trauma Center In the early morning hours of May 3, 2014, Mr. Williams was driving when he lost control of his car on the Capital Beltway and crashed.15 As a result, he suffered severe injuries to his legs and left arm. An ambulance and EMS personnel were dispatched to the scene of the accident. Mr. Williams testified at trial that he was conscious when the EMS personnel arrived at the scene and when they placed him into the ambulance.

He asked the 14 A more complete collection of cases can be found in several annotations, including Annotation, Liability of Hospital or Sanitarium for Negligence of Independent Physician or Surgeon – Exception Where Physician Has Ostensible Agency or “Agency by Estoppel,” 64 ALR 6th 249 (originally published 2011); Annotation, Liability of hospital or sanitarium for negligence of physician or surgeon, 51 ALR 4th 235 (originally published 1987). 15 On cross-examination, Mr. Williams admitted that he had been drinking “at an event” that night. The trial court instructed the jury that the evidence that Mr. Williams had been drinking could not be considered in its assessment whether the physicians who had treated him at the Hospital were negligent. 17 EMS personnel to straighten out his left leg and answered background questions posed by the medics. In accordance with the MIEMSS protocols, the EMS personnel decided to take Mr. Williams to the Hospital, which had the closest trauma center, instead of another hospital that may have been closer to the accident but that lacked a trauma center. The parties stipulated at trial that the Hospital is designated as a Level II Trauma Center by MIEMSS.

A Pre-Hospital Care Report prepared by EMS personnel during the transport of Mr. Williams was admitted as an exhibit at trial. It documented his behavior and conversations in the ambulance, noting Mr. Williams’ recollection of the accident, awareness of his surroundings, and responsiveness to paramedics’ questions. However, the report also noted his extreme distress, disorientation, and discomfort due to multiple severe injuries. Mr. Williams testified that, although he was “in and out of it” and “dazed” while riding to the Hospital in the ambulance, he recalled the journey.16 The ambulance delivered Mr. Williams to the Hospital’s trauma center around 1:30 a.m.

Mr. Williams testified that he “didn’t have a choice” as to the physicians who would attend to him, but “relied on [] the hospital to treat [him]” with knowledge that it was a trauma center. According to a trauma assessment form prepared after his arrival at the Hospital, Mr. Williams, though verbally confused, was conscious and oriented to person, time, and place. The physician 16 Certain parts of Mr. Williams’ testimony concerning what EMS personnel may have told him about the destination of the ambulance were struck as hearsay. On cross- examination, the defense impeached Mr. Williams with his pretrial deposition testimony that he had no memory of a conversation with EMS personnel, including the destination of the ambulance. 18 who initially encountered Mr. Williams reported that he was “repetitive” and “not making sense” and decided to intubate him “due to combativeness” at 1:52 a.m.

The Hospital apparently asked patients to sign a form that was labeled in different places as “Consent to Treatment” and “Universal Consent.” The two-page form consists of approximately 25 densely worded paragraphs concerning not only the patient’s consent to treatment in the Hospital, but also information about billing, authorizations to release the patient’s information for various purposes, acknowledgments of