Recently, the West Virginia Supreme Court upheld a circuit court decision in favor of a hospital that had been sued for vicarious liability. The case involved a 2007 incident where Dr. Jan Cunningham went to the emergency room of Herbert J. Thomas Memorial Hospital (“Thomas Hospital”) and was admitted as a patient by Dr. Hossam Tarakji. A few days later, Dr. Richard Fogle performed exploratory surgery on Dr. Cunningham, which led to an infection, which required numerous follow-up procedures and resulted in Dr. Cunningham suffered a permanent injury. At some point during this ordeal, Dr. Tarakji went on vacation and Dr. Thomas Rittinger took his place. Dr. Cunningham eventually sued the three other doctors for negligence and Thomas Hospital for vicarious liability.
Vicarious liability involves situations where the employer is held liable for negligent actions by the employees. In order for the employer to be liable, the actions must take place within the “scope of employment.” A hospital could be held liable for a doctor’s harmful actions during a patient’s treatment. However, it would not be responsible for a doctor’s actions if he got into a drunk driving accident because — unless he was in a hospital-owned vehicle on his way to a patient or to the hospital — he would not be acting within the scope of employment.
One hitch to Dr. Cunningham’s argument was that the three doctors were not directly employed by Thomas Hospital. Rather, Drs. Tarakji and Rittinger were employed by Hospitalist Medicine Physicians of Kanawha County and Dr. Fogle was employed by Delphi Health Partners. Both entities were named in Dr. Cunningham’s lawsuit. Dr. Cunningham argued that even if the doctors were not directly employed by Thomas Hospital, they held themselves out as actual agents of the hospital, or the hospital had a joint venture with the two other entities.
The Kanawha County Circuit Court rejected the argument that the doctors were employees or actual agents of Thomas Hospital, and so Dr. Cunningham appealed to the West Virginia Supreme Court. The Supreme Court examined Thomas Hospital’s connection to the doctors in light of the legal factors for determining the difference between an employee/actual agent and an independent contractor: (1) how the “servant” was selected and engaged; (2) the manner of compensation; (3) who had the power of dismissal; and (4) who had the power of control.
For the first factor, the Supreme Court found that the two other entities were responsible for recruiting the three doctors, not Thomas Hospital. For the second factor, the Supreme Court noted that Thomas Hospital sent compensation to Delphi and Hospitalist, which then paid Drs. Tarakji, Rittinger, and Fogle. Thomas Hospital also did not bill patients for the doctors’ services or pay for their malpractice insurance. For the third factor, while the hospital required the doctors to follow its bylaws, there was nothing to suggest that the hospital had the power to terminate the doctors directly for noncompliance. Finally, for the fourth factor — considered to be the most important — the Supreme Court found that Thomas Hospital only exercised a level of control permitted by previous court decisions, and therefore did not have the power of control. Taking all of the factors together, the Supreme Court determined that Thomas Hospital was not the doctors’ employer and thus was not vicariously liable for their negligent actions. The Supreme Court also did not accept the argument that the two other entities had a joint venture with the hospital.
If you suffered an injury at a hospital and hired a West Virginia personal injury attorney, you need to be aware of whether the person responsible worked directly for the hospital. If that person is an independent contractor, that does not mean you cannot win a lawsuit against him or her, but it will determine whether you can collect a monetary award from the hospital itself.