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Weekly UpdatesCASE ON POINT: Estate of Cordero v. Christ Hospital, (10/29/2008)--NJ
ISSUE: The recurring question of whether hospitals can be held responsible for the negligence of physicians working at hospitals, but not employed by the hospitals, reared its ugly head again.
CASE FACTS: On the morning of September 14, 2003, Romana Cordero, a fitly-one year-old insulin-dependent diabetic, woke up vomiting. When her condition did not improve, she sought treatment at Christ Hospital's emergency room. She was diagnosed with renal failure, admitted to Christ Hospital and underwent dialysis while there. Surgery to implant a catheter that would facilitate ongoing dialysis was done on September 22. Dr. Selvia Zaklama, who was on the staff in the hospital's anesthesiology department but employed by an independent contractor, Hudson Anesthesia Group, which had contracted to provide anesthesia services at the hospital. Dr. Zaklama was assigned, randomly to provide services during the procedure. Dr. Zaklama did not meet the patient or any member of her family before September 22. Dr. Zaklama had one brief conversation with the patient before the procedure. The doctor gave this account: "I just introduced myself, 'I am Dr. [so and so] who is the anesthesia [sic] and I'm going to take care of you.'" Dr. Zaklama wore no identification to disclose her affiliation with Hudson Anesthesia Group. All anesthesia services at the hospital were provided by Hudson employees. Dr. zaklama did not tell the patient that Christ Hospital assumed no responsibility for the care she would provide. Christ Hospital's website identified Dr. Zaklama as a member of its anesthesia department without reference to Hudson. During the patient's operation, the surgeon implanted the catheter without incident, but while the surgeon was dictating his report in the operating room he noticed that the patient's blood pressure and heart rate had dropped! He alerted Dr. Zaklama who was still with the patient. Dr. Zaklama was unable to stabilize the patient, and Christ Hospital's "Code" team was summoned. Although the patient was resuscitated, she suffered brain damage and never regained consciousness. She remained in a vegetative state until she died, three-and-one-half-months later. The patient's estate and her husband brought suit against Christ Hospital, Drs. Zaklama, McGovern and Hudson Anesthesia Group. Claims against all defendants, except Christ Hospital, were settled or dismissed. However, the trial court granted Christ Hospital's motion to dismiss the plaintiffs' case. Plaintiffs appealed.
COURT'S OPINION: The Superior Court of New Jersey, Appellate Division, reversed the judgment of the trial court in part, affirmed it in part and remanded the case for trial. The court held, inter alia, that the hospital held Dr. Zaklama out as its own agent. The court opined that when a hospital provides a doctor for a patient under circumstances in which a reasonable patient would believe the service is rendered on behalf of the hospital, a strong inference arises that a patient who accepts the doctor's care, does so in that belief. For that reason the court held that when a hospital patient accepts a doctor's care under such circumstances, the patient's acceptance in the reasonable belief that the doctor is rendering treatment on behalf of the hospital may be presumed, unless rebutted.
LEGAL COMMENTARY: Having created a misimpression of agency, Christ hospital failed to take any action to correct it. There was no evidence that the hospital issued, or required Dr. Zaklama to issue, any disclaimer of its responsibility and no evidence that the patient was given an opportunity to reject Dr. Zaklama's services or select a different doctor. Nothing suggested that the patient had knowledge about the administration of Christ Hospital or its relationship with Dr. Zaklama. There was a myriad of errors and omissions by the hospital if it honestly hoped that it was not creating an apparent agency situation for which it would be liable for the negligence and/or medical malpractice of the employees of Hudson Anesthesia Group. The hospital apparently made no effort whatsoever to convey the fact that Dr. Zaklama was not its own employee. In fact, the hospital's very own website showed that Dr. Zaklama was a hospital staff member, without any disclaimer that she was, in fact, an employee of Hudson Anesthesia Group. Further, Dr. Zaklama admitted that she was not wearing any badge or other identifying material relative to the fact she was an employee of Hudson. In addition, she readily admitted that she did not identify herself to the patient nor in any way indicate that she was not a hospital employee. The hospital involved in the case did just about everything possible so that the patient had no clue that she was being treated by anyone other than a hospital employee. Any hospital acting as the hospital did in this case has issued an invitation to invoke the apparent agency doctrine.
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports. his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law. Who's Who in America and Who's Who in the World.
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