State: New Jersey
Subject Matter: Vicarious Liability - Hospitals
Shared with the permission of Attorney David Donohue, Partner, Farkas & Donohue.
Attached is a recent decision from the NJ Appellate Division. This expands the scope of vicarious liability for hospitals for the negligence of independent physician contractors. The court held that the hospital could be vicariously liable for the negligence of a anesthesiologist even though he was not an employee of the hospital under the doctrine of apparent authority.
To make sure that one of your facilities is not held vicariously liable for the negligence of an independent contractor (physician or nurse) there should be some notice provided to the patient that the care provider is not an employee of the facility. The court’s rationale was that the hospital’s action in contracting with an independent group to provide anesthesiology services "put in place a system under which Dr. Zaklama arrived, without explanation, on the day of Cordero’s surgery to provide specialized care in the operating room." "The totality of these circumstances would lead a reasonable patient in the same situation to assume that Christ Hospital furnished the services of the anesthesiologist along with those of other members of the operating room. staff." The court held that the hospital created the misimpression and did nothing to correct it as there was no evidence that the hospital issued, or required the anesthesiologist to issue, any disclaimer of its responsibility and no evidence that the patient was given an opportunity to reject the anesthesiologist’s services or select a different doctor.
What will qualify as adequate notice to a patient was not specifically addressed by the court. However, a conspicuous (enlarged font and bold) statement in the admission paperwork, that patients are required to sign, advising that not all doctors and nurses are employees and that they can select a different care provider. As well as some type of ID badge that specifically states that the particular physician or nurse is not an employee, would likely suffice.
David C. Donohue, Esq.
Farkas & Donohue, LLC
389 Passaic Avenue
Fairfield, New Jersey 07004
Telephone: (973) 575-5460
Fax: (973) 575-8580
Document Author: NJ APPELLATE DIVISION
Document Date: February 27, 2020
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