Modern Trends in Hospital Liability
By Sally A. Roberts, Esq.
Traditionally, the courts have denied recovery against hospitals for the acts of independent
contractor physicians. However, the modern trend is towards holding hospitals vicariously liable even
for the malpractice of physicians who are independent contractors. There is a growing body of case
law which imposes vicarious liability on hospitals based on theories of ostensible or apparent
authority, respondeat superior, corporate negligence, and non-delegable duty.
Although there is no Connecticut Supreme Court or Appellate Court case dealing specifically
with the issue of hospital liability under the theory of apparent agency, a number of superior court
cases,1 and two federal district court cases2 have ruled that an apparent agency claim against a hospital
is permitted under Connecticut law. This is in keeping with the modern trend, and other jurisdictions
faced with this issue have recognized such a claim.3 There is also a plethora of literature in the
secondary sources appearing in journals throughout the country on this emerging trend.4
In the seminal case of LeConche v. Elligers, 1991 Conn. Super. LEXIS 1693 (July 16, 1991;
Stengel, J.), the plaintiffs had alleged negligence and breach of contract against six defendants: four
doctors, St. Francis Hospital and the Hartford Urology Group. In particular, the plaintiff Mary
LeConche had alleged that she was admitted to St. Francis Hospital, diagnosed as having
pyelonephritis, and discharged. She was readmitted one day later, diagnosed as having retrocecal
appendicitis, and an appendectomy was performed. The hospital claimed that it was entitled to a
summary judgment on the grounds that as a matter of law, the doctors who allegedly committed
malpractice on the patients were independent contractors. The court held that if, by its actions, the
hospital created a reasonable belief on the part of the patients that the doctors were in fact the hospital’s
1
McClelland v. Day Kimball Hosp., 2001 Conn. Super. LEXIS 366 (Feb. 2, 2001; Bishop, J.); Wilverding v. Ostrowitz, 2000
Conn. Super. LEXIS 607 (Feb. 28, 2000; Skolnick, J.); Custer v. Kurowski, 1999 Conn. Super. LEXIS 228 (Jan. 29, 1999;
Hurley, J.); Francisco v. Hartford Gynecological Center, Inc., 1994 Conn. Super. LEXIS 521 (Mar. 1, 1994; Corradino, J.);
Koniak v. Sawhney, 1994 Conn. Super. LEXIS 95 (Jan. 13, 1994; Rush, J.); LeConche v. Elligers, 1991 Conn. Super. LEXIS
1693 (July 16, 1991; Stengel, J.).
2
Kafri v. Greenwich Hosp. Ass'n, 2000 U.S. Dist. LEXIS 22657 (Feb. 24, 2000; D. Conn.; Nevas, J.); Menzie v. Windham
Community Memorial Hosp., 774 F. Supp. 91 (D. Conn. 1991; Dorsey, J); Plaintiffs were represented by Koskoff, Koskoff &
Bieder, while Windham Hospital was represented by Day, Berry & Howard (Francis H. Morrison, III, and Paul D. Williams),
and the doctor by Cooney, Scully & Dowling.)
3
See, e.g., Mduba v. Benedictine Hospital, 384 N.Y.S.2d 527, 52 A.D.2d 450 (N.Y. 1976).
4
See Daniel L. Icenogle, J.D., M.D., Hospital Liability as to Diagnosis and Care of Patients in Emergency Room, 58 A.L.R.
5th 613; John D. Hodson, Ph.D., J.D., Liability of Hospital or Sanitarium for Negligence of Physician, 51 A.L.R. 4th 235, § 7;
David H. Rutchik, The Emerging Trend of Corporate Liability: Court’s Uneven Treatment of Hospital Standards Leaves
Hospitals Uncertain and Exposed, 47 Vand. L. Rev. 535 (March, 1994); Andrea G. Nadel, J.D., Hospital’s Liability for
Negligence in Failing to Review or Supervise Treatment Given by Doctor, or to Require Consultation, 12 A.L.R. 4th 57;
Wanda E. Wakefield, J.D., Propriety of Hospital’s Conditioning Physician’s Staff Privileges on His Carrying Professional
Liability or Malpractice Insurance, 7 A.L.R. 4th 1238; Mitchell J. Nathanson, Hospital Corporate Negligence: Enforcing the
Hospital’s Role of Administrator, Tort & Insurance Law Journal, Vol. XXVIII, No. 3, Spring 1993, pp. 575-595; Trotter
Hardy, Jr., When Doctrines Collide: Corporate Negligence and Respondeat Superior when Hospital Employees Fail to Speak
Up, 61 Tul. L. Rev. 85 (Nov. 1986); Benjamin J. Vernia, J.D., Tort Claim for Negligent Credentialing of Physician, 98
A.L.R. 5th 533.
1
employees, then the hospital could be liable under the theory of ostensible agency, apparent authority,
or agency by estoppel.
Before LeConche was decided in 1991, no Connecticut court had considered the question of
whether a hospital could be vicariously liable for the negligence of a staff doctor. In LeConche, the
plaintiff claimed that the negligent doctor was an apparent agent of the hospital and, therefore, the
hospital could be held liable for his negligence. In denying the hospital’s motion for summary
judgment, the court explained that the majority of jurisdictions which had considered the issue had held
that a hospital may be liable under an apparent agency theory. The court’s conclusion was deemed
justified by the changing role of hospitals in society which has created a likelihood that patients look to
the hospital for care and services, as opposed to individual physicians.
In Menzie v. Windham Community Memorial Hosp., 774 F. Supp. 91 (D. Conn. 1991; Dorsey,
J), the court impliedly recognized an apparent agency claim against a hospital, although it decided that
the plaintiff had failed to produce evidence of reliance, and thus summary judgment was deemed
proper. The court based its holding on the fact that the plaintiff had been taken to the hospital under
emergency circumstances and had not chosen the hospital or the doctor. As such, the court held that
there could be no reliance by the plaintiff.
Before reaching this conclusion, however, the court noted with significance that: “The record
reveals some evidence that the hospital held the doctors out as its employees. For example, allowing the
doctors to wear operating room clothing provided by the hospital with the name of the hospital printed
on it, referring to the Anesthesiology Associates as the hospital’s ‘anesthesia department,’ and failing to
inform plaintiff that the doctors were not employees could be considered relevant to this conclusion.
However, although plaintiff might have satisfied the first part of the test for apparent agency, that
question need not be decided because he has failed to satisfy the reliance requirement.” Menzie, supra
note 2, at 97.
In an edifying explication of this modern trend, the court in Kafrie, supra note 2, expounded as
follows: “This court, along with numerous other courts, finds no reason why the doctrine of apparent
agency should not apply to hold a hospital liable for the negligence of an independent contractor. ...
Moreover, the modern trend is to permit the use of an apparent agency theory to hold a hospital liable
for the negligence of a doctor/independent contractor where there has been a holding out of the doctor
by the hospital and reasonable reliance thereon by the plaintiff. See Restatement (Second) of Agency §
267 (1994) (recognizing that the modern trend is to permit apparent agency claims against hospitals for
the negligence of doctors who are independent contractors); Restatement (Second) of Torts § 429
(2000) (recognizing the same).”
The court continued its lucid analysis: “Further, the court finds several reasons for applying the
doctrine of apparent agency to a hospital. No reasonable patient in the position of the plaintiff would
assume anything else but that the medical staff performing the medical procedures were employees of
the hospital. Indeed, a patient has the right to rely on the reputation of the hospital when she agrees to
have a medical procedure performed at the hospital. As such, it is reasonable for the public to assume
that a hospital to which it goes for treatment exercises medical supervision over, and is responsible for
the negligence of, medical personnel providing services whether they are independent contractors or
not. ... Accordingly, the court finds that Connecticut law does not preclude a plaintiff from bringing an
apparent agency claim against a hospital for the alleged negligence of a doctor who is an independent
contractor.” Kafrie.
2
As background to a muddle in nomenclature, there is a significant overlap in the doctrines of
apparent agency and apparent authority.5 “Apparent agency,” (sometimes called “ostensible
agency”) is based on the Restatement (Second) of Torts, which provides:
One who employs an independent contractor to perform services for another which are accepted
in the reasonable belief that the services are being rendered by the employer or by his servants,
is subject to liability for physical harm caused by the negligence of the contractor in supplying
such services, to the same extent as though the employer were supplying them himself or by his
servants. Restatement (Second) of Torts, § 429.
The two relevant factors in apparent agency are: (1) Whether the patient looks to the institution, rather
than the individual physician, for care; and (2) Whether the hospital “holds out” the physician as its
employee.
Apparent authority is based on Section 8 of the Restatement (Second) of Agency, which
provides that “apparent authority results from a manifestation by a person that another is his agent, the
manifestation being made to a third person and not, as when authority is created, to the agent.” 1
Restatement (Second) of Agency, § 8, comment (a).
Apparent authority “is created as to a third person by written or spoken words or any other
conduct of the principal which, reasonably interpreted, causes the third person to believe that the
principal consents to have the act done on his behalf by the person purporting to act for him.” 1
Restatement (Second) of Agency, § 27. “Either the principal must intend to cause the third person to
believe that the agent is authorized to act for him, or he should realize that his conduct is likely to create
such a belief.” 1 Restatement (Second) of Agency, § 27, comment (a).
An oft-quoted discussion from the Connecticut Supreme Court on this term is as follows:
“Apparent authority is that semblance of authority which a principal, through his own acts or
inadvertence, causes or allows third persons to believe his agents possess. ... Apparent authority thus
must be determined by the acts of the principal rather than by the acts of the agent. ... Furthermore, a
party seeking to impose liability upon the principal must demonstrate that it acted in good faith based
upon the actions or inadvertence of the principal.” Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120,
140-41 (1983) (Internal quotations and citations omitted.). (Emphasis added.)
“There are numerous cases throughout the country which apply the doctrine of apparent
authority so as to make a hospital liable for the negligence of an independent contractor. ... Connecticut
has long recognized the doctrine of apparent authority. ... The doctrine of apparent authority
basically holds that one who employs an independent contractor to perform services for another which
are accepted in the reasonable belief that the services are being rendered by the employer or its servants
is subject to liability for physical harm caused by the negligence of the independent contractor in
supplying the services to the same extent as though the employer were supplying them itself or by its
servants. ... There is no analytical reason not to extend this doctrine to the hospital situation, [and] in
fact there are several good policy reasons for doing so.” Francisco, supra note 1. (Emphasis added.)
5
See Fletcher v. South Peninsula Hosp., 71 P.3d 833 (2003), where the Supreme Court of Alaska provides an excellent
discussion, pointing out the distinctions in these doctrines. This is the only case I have come across, in reviewing decisions
from across the country, which even recognizes that there is confusion.
3
“Courts in other jurisdictions have held that a hospital may be held liable for its staff physician’s
negligence under the theory of ostensible agency, apparent authority or agency by estoppel. 51
A.L.R. 4th 235.6 Courts have concluded that despite the fact that a physician holds independent
contractor status with respect to a hospital, he may nevertheless be an agent with respect to the patient.
... The concept of ostensible agency and apparent authority involve questions of fact that must be
addressed at trial.” Custer, supra note 1. (Internal quotations and citations omitted) (Emphasis in
original as to agent and independent contractor; emphasis added as to the other terms.)
“The issue of apparent authority is one of fact, requiring the trier of fact to evaluate the
conduct of the parties in light of all the surrounding circumstances.” Edart Truck Rental Corp. v. B.
Swirsky & Co., 23 Conn. App. 137, 140 (1990) (Emphasis added.).
The discussion thus far has focused on modern trends in general as to hospital liability.
However, there is a subcategory in these emerging theories which focuses specifically on emergency
room care, treatment, and diagnosis. Under traditional agency law, hospitals have been, and continue to
be, held liable for the negligent acts of their employees and agents working within the emergency room.
Hospitals can also be held liable under breach of contract for events occurring in their emergency rooms
in certain fact situations and can be liable for violating the terms of certain federal and state statutes
regulating emergency care. Although, until recently, hospitals were not held liable for the acts of
independent-contractor physicians who practiced within the hospital emergency room, the courts in
several states have held hospitals liable under certain circumstances for the negligence of these
independent contractors. See 58 A.L.R. 5th 613, supra note 5, for additional discussion as to particular
factual situations. The gist of the theories has been already addressed in this memo.
Conclusion
In the past several decades, the courts have made significant progress in adjusting to the rapidly
changing health care industry. The role of the hospital has changed as significantly as any element in
the industry. The recognition of the hospital as more than a building where physicians treat their
patients was an important first step in properly evaluating and allocating responsibility for negligent acts
of medical providers. The use of corporate liability and ostensible agency has filled the gaps left by the
traditional theory of respondeat superior. Further progress needs to be made to ensure that the public is
fully protected and that providers of poor quality health services remain fully liable for their services.
In the article cited, 51 A.L.R. 4th 235, supra note 5, it notes: “The labels ‘ostensible agency,’ ‘apparent authority,’ and
‘agency by estoppel,’ as well as the ‘holding out’ theory, appear to be used interchangeably by the courts to refer to the
theory of liability treated in this section.” note 34. In a further explanatory footnote: “It should be noted that there are two
ways of expressing this theory of liability. According to one mode of expression, which has been adopted in this annotation,
the hospital's liability for the acts of a physician under the theory of ostensible agency is an exception to the general rule of
nonliability for the acts of independent contractors. Under an alternative mode of expression, the physician for whose acts the
hospital is liable under the theory of ostensible agency is said to be an agent of the hospital, making the hospital liable under
the general rule of liability for the acts of an agent. Under either mode of expression, however, the hospital is held liable for
the acts of a physician who, apart from the theory of ostensible agency, would be considered an independent contractor with
respect to the hospital.” Id, at note 35.
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