Recent Pennsylvania Appeal Illustrates how Hospitals use Contractors Instead of Employees in Order to Avoid Liability
When you go to a hospital here in the Tampa Bay area, you probably assume that the doctors who are treating you are either employees of the hospital or have some form of relationship with that facility. Perhaps the physician is wearing a white coat with the hospital’s name on it, wearing a hospital-issued badge, and performing procedures alongside nurses who are employed by the hospital. So, you reasonably assume that the physician treating you works for the hospital. You may be surprised to learn that in many cases this assumption is wrong.
A recent court case in Pennsylvania highlights how hospitals use some creative logic to avoid liability for the doctors who make errors in their facilities.
Green v. Pennsylvania Hospital
Joseph Fusco arrived at Pennsylvania Hospital with shortness of breath and other symptoms. He was placed on a ventilator for 10 days, and then eventually the staff began weaning him from the ventilator. This process is often time-consuming and painful for the patient. As part of the ventilator placement, a tracheotomy was used. This is a procedure whereby a small incision is made in the patient’s throat, cutting into the trachea, and inserting a tube in order to allow air to be pushed directly into the patient’s lungs. Fusco’s tracheotomy site became blocked, requiring a second attempt at the procedure. During the second attempt, the tube went into his Thorax rather than trachea, causing air to build up and collapse his lungs, thus killing him quickly. Fusco’s estate brought a lawsuit against the hospital and the physician. However, the hospital argued that the physician was not its “agent.”
What is “Agency?”
Employees are considered agents of their employers, meaning that their employer is generally responsible for their negligent conduct, so long as it was not intentional or criminal. Therefore, when a hospital’s employee commits a grave medical error that kills a patient, the hospital is liable – not just the employee. Likewise, even if not an employee, certain conduct can rise to the level of “agency” if the employer exerts enough control over that person. Courts use a complex series of tests to determine whether a person is actually considered an agent under the control of another. If agency exists, then the employer is also liable. If not, then only the negligent person is liable. One can quickly see why agency is important. Hospitals are far more likely to have the resources and insurance limits to compensate for serious injuries and deaths.
How do Hospitals Avoid Liability?
If you look closely at the walls and hallways of your local hospital, you may see small, inconspicuous signs that read, “Physicians are contractors and not employees of the hospital.” Likewise, many physicians are employed in solo practice or small group practices that, while technically affiliated with the hospital, are employed by someone else. Similarly, even if physicians have privileges at the hospital, the hospital will likely deny any agency relationship, just as the hospital did in the Green v. Pennsylvania Hospital case.
Ultimately, in that case, the appellate court felt that a patient who is in serious distress is unlikely to know the difference and may quite reasonably assume that physicians or nurses rendering treatment are employed by the hospital. This result is not always the same, and Florida hospitals have made the same arguments many times. If injured by medical malpractice in a Florida hospital, you should immediately contact an experienced Florida personal injury attorney at the Romero Law Firm who can assess the relationship between those persons committing the negligence and the facility where the care was provided.