Albain v. Flower Hospital

553 N.E.2d 1038, 50 Ohio St. 3d 251, 3 A.L.R. 5th 1006, 1990 Ohio LEXIS 194
CourtOhio Supreme Court
DecidedApril 25, 1990
DocketNo. 88-2208
StatusPublished
Cited by151 cases

This text of 553 N.E.2d 1038 (Albain v. Flower Hospital) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albain v. Flower Hospital, 553 N.E.2d 1038, 50 Ohio St. 3d 251, 3 A.L.R. 5th 1006, 1990 Ohio LEXIS 194 (Ohio 1990).

Opinion

Holmes, J.

This case presents us with two issues concerning the liability of a hospital for alleged negligent conduct by physicians with staff privileges and other professionals caring for patients on its premises. First, we are asked to determine whether, and under what circumstances, a hospital may be liable for the negligence of the physicians to which it has granted staff privileges (and who are frequently referred to as “staff physicians”). For the reasons discussed in Part I, we reject appellees’ theory of so-called corporate negligence and hold that a hospital’s liability must be determined by application of established rules of agency and tort law. In the present case, we hold that Dr. Abbo was in fact an independent contractor properly retained by appellant hospital, and, inasmuch as appellees failed to establish an ostensible agency relationship between the hospital and Dr. Abbo, the hospital may not be held vicariously liable for Dr. Abbo’s alleged negligence.

Second, we are asked to determine whether a hospital may be held vicariously liable for its employees’ alleged failure to keep an attending physician fully informed of a patient’s condition. For the reasons discussed in Part II of this opinion, we answer such query in the affirmative. However, we also hold that the trial court correctly granted summary judgment in favor of appellant on this issue, and thus we reverse the judgment of the court of appeals.

Our review in this case is governed by the standard for granting a motion for summary judgment:

“Civ. R. 56(C) specifically provides that before summary judgment may be granted, it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 O.O. 3d 466, 472, 364 N.E. 2d 267, 274; Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 117, 522 N.E. 2d 489, 505.

I

A

It is a fundamental maxim of law that a person cannot be held liable, [255]*255other than derivatively, for another’s negligence. In an employment setting such as is before this court today, the most common form of derivative or vicarious liability is that imposed by the law of agency, through the doctrine of respondeat superior.

“The fundamental rule generally recognized is that the doctrine of respondeat superior is applicable to the relation of master and servant or of principal and agent, but not to that of employer and independent contractor

“The relation of principal and agent or master and servant is distinguished from the relation of employer and independent contractor by the following test: Did the employer retain control, or the right to control, the mode and manner of doing the work contracted for? If he did, the relation is that of principal and agent or master and servant. If he did not but is interested merely in the ultimate result to be accomplished, the relation is that of employer and independent contractor.” Miller v. Metropolitan Life Ins. Co. (1938), 134 Ohio St. 289, 291-292, 16 N.E. 2d 447, 448, quoted in Councell v. Douglas (1955), 163 Ohio St. 292, 295, 56 O.O. 262, 263, 126 N.E. 2d 597, 599.

The law of agency thus holds a principal or employer vicariously liable for the negligence of his agents or employees committed while acting within the scope of their employment. Restatement of the Law 2d, Agency (1958) 481, Section 219(1). Employers are not vicariously liable for the negligence of independent contractors retained by them, over whom the employer has not retained the right to control the mode and manner of doing the contracted work, except in a few circumstances to be discussed below. See Councell, supra; Restatement of the Law 2d, Torts (1965) 370, Section 409.

In Avellone v. St. John’s Hospital (1956), 165 Ohio St. 467, 60 O.O. 121, 135 N.E. 2d 410; and Klema v. St. Elizabeth’s Hospital of Youngstown (1960), 170 Ohio St. 519, 11 O.O. 2d 326, 166 N.E. 2d 765, this court abrogated the concept of charitable immunity for nonprofit hospitals, and Ohio law now holds such hospitals liable for the negligent acts of their employees, under the doctrine of respondeat superior, “irrespective of whether those acts are administrative or medical.” Klema, supra, at paragraph two of the syllabus.4 Both cases, however, dealt solely with a hospital’s liability for the negligence of actual agents or employees of the hospital. In both cases, this court specifically reserved the question of whether “persons working in a hospital, such as doctors and nurses, under circumstances where the hospital has no authority or right of control over them, can bind the hospital by their negligent actions.” Avellone, supra, at 478, 60 O.O. at 478, 135 N.E. 2d at 417; Klema, supra, at 525-526, 11 O.O. 2d at 330, 166 N.E. 2d at 770.

In the instant case, the parties do not dispute that Dr. Abbo, a fully licensed obstetrician with a private practice and staff privileges at Flower Hospital, who billed all her patients directly (including Sharon), was an independent contractor over whom Flower Hospital “had no authority or [256]*256right of control.” As contrasted with a hospital’s full-time salaried employees such as residents, interns and “house physicians,”5 an independent staff physician often has staff privileges at several hospitals. While each of these hospitals has the power to grant and revoke staff privileges, and may establish policies and procedures related to patient care, accredited hospitals must allow their staff physicians “to provide patient care services independently within the scope of their clinical privileges.” Joint Commission on Accreditation of Hospitals, Accreditation Manual for Hospitals, 1986 (1985) 101, cited in Comment, Hospital Liability for Physician Malpractice: The Impact of Hannola v. City of Lakewood (1986), 47 Ohio St. L.J. 1077, 1083.6 The mere granting of staff privileges to an independent [257]*257private physician, which the hospital may later revoke under its procedures, does not establish the requisite level of authority or control over such physician to justify liability under the doctrine of respondeat superior. We specifically reject any inclusion within the holding of the court of appeals in Hannola v. Lakewood (1980), 68 Ohio App. 2d 61, 67-69, 22 O.O. 3d 63, 66-68, 426 N.E. 2d 1187, 1191-1192, to the contrary.

We do not hold, however, that a hospital may never be held liable for the negligence of a physician with staff privileges. There are three generally recognized exceptions to the independent contractor rule, each of which has been raised in this appeal. First, an employer may be directly liable for injuries resulting from its own negligence in selecting or retaining an independent contractor. See, generally, Restatement of the Law 2d, Torts, supra, at 376, Section 411.

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Bluebook (online)
553 N.E.2d 1038, 50 Ohio St. 3d 251, 3 A.L.R. 5th 1006, 1990 Ohio LEXIS 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albain-v-flower-hospital-ohio-1990.