MEDICINE AND THE LAW
Redefining hospital malpractice Expanded liability for independent contractors BY BESSE MCDONALD, JD, AND JULIA J. NIERENGARTEN, JD
O
n July 29, the Minnesota Supreme Court issued a decision in Popovich v. Allina Health System in which it determined, for the first time, that a plaintiff may assert a claim of vicarious liability (under which one party is held partly responsible for the unlawful actions of a third party) against a hospital based on the apparent authority of independent contractors providing care in the hospital. In reaching this conclusion, the Court clarified that there is no “hospitals-only exemption from the general rule of vicarious liability based on apparent authority,” and declared that the legal standard to establish an apparent-authority vicarious liability claim only required the plaintiff to demonstrate that the hospital held itself out as a provider of emergency medical care and that the plaintiff looked to the hospital, rather than to a particular doctor, to provide care.
Background Popovich arises out of the alleged negligent medical care from emergency room physicians and radiologists who worked at Unity and Mercy Hospitals, both owned by Allina Health System (Allina). The health system does not employ
Executive Master of Healthcare Administration MHA
Minnesota’s Highest-Ranked Management Degree for Healthcare Leaders (pictured: Dr. Gigi Chawla, MHA ’17)
SPH UMN EDU
the emergency department physicians or radiologists at these hospitals, instead contracting with Emergency Physicians Professional Association and Suburban Radiologic Consultants to provide this medical care to the public. In this case, the patient went to the Unity Hospital emergency department complaining of dizziness, loss of balance, and blurry vision. An emergency medicine physician attending to the patient ordered a head CT, which was reviewed by a radiologist. The patient was then discharged home. Later that morning, his condition worsened, and his wife called 911. The patient was unresponsive by the time paramedics arrived, and he was taken by ambulance to Mercy Hospital. An emergency medicine physician treating the patient ordered a variety of tests and imaging, including another head CT. The radiologist at Mercy Hospital compared the scan to the one taken at Unity earlier that morning, identifying abnormalities in the scans and noting increased swelling in the patient’s brain compared to the first scan from Unity Hospital. The patient was ultimately transferred to Abbott Northwestern for further care that evening. He was diagnosed with dissection of the left proximal vertebral artery with thrombus and had suffered a stroke, which has left him with serious and irreversible brain damage. The patient’s wife sued Allina, Emergency Physicians Professional Association, the emergency room physicians, and Suburban Radiologic Consultants for medical malpractice. The lawsuit alleged, in part, that the patient suffered a stroke as a result of negligent care provided in the emergency departments of Unity and Mercy Hospitals. Allina moved to dismiss for failure to state a claim, arguing that Minnesota law prohibits a lawsuit against a hospital based upon the purported negligence of independent contractors. The district court granted Allina’s motion and dismissed the case. The plaintiff appealed, and the Minnesota Court of Appeals affirmed the decision, citing a 30-year precedent that a hospital could only be vicariously liable for the actions of a non-employee. The plaintiff then petitioned the Minnesota Supreme Court for review, which that court granted.
The Supreme Court reverses The merits of the plaintiff ’s claims were not before the Minnesota Supreme Court in Popovich. Instead, the Court was asked to determine whether the plaintiff could maintain the vicarious liability claim against the hospital system on a theory of apparent authority where the treating emergency room physicians worked as independent contractors; and, if so, what the “proper legal standard” for apparent authority vicarious liability is in this context. The plaintiff ’s theory—vicarious liability based on apparent authority— was an issue of first impression, so the Court undertook a general review of vicarious liability under Minnesota law to determine whether such liability extends to hospital systems in a situation like this. Minnesota recognizes vicarious liability under two different theories: respondeat superior, where an employer is vicariously liable for its employee’s torts committed within the course and scope of his or her employment; and Redefining hospital malpractice to page 184
16
SEPTEMBER 2020 MINNESOTA PHYSICIAN
