Cited Article

Clark v. Southview Hospital: Ohio Follows the Nationwide Trend of Using Agency by Estoppel to Impose Strict Liability on Hospitals Note


Colleen Moran

Case Citation

Sheldon v. Damle, No. WC 2001-0072, 2004 R.I. Super. LEXIS 160 (R.I. Super. Ct. Sept. 3, 2004)


The fact-specific holding “A court denied a hospital's motion for summary judgment in a husband's suit alleging it was vicariously liable for doctor's medical malpractice under doctrine of apparent authority. Direct evidence of what deceased patient believed was not required.”

Citing Quote

In a medical malpractice setting, Agency § 267 requires a plaintiff to show: (1) a representation by the hospital that the allegedly negligent physician is his servant or agent; and (2) the plaintiff, or injured party, must justifiably rely upon the skill or care of the apparent agent to his detriment. Comment a to Agency § 267 specifically sets forth that an injured party's belief that an actor (physician) is the defendant's (hospital) servant is insufficient to impose liability. Comment a further states, "there must be such reliance upon the manifestation as exposes the plaintiff to the negligent conduct." The second prong of Agency § 267 clearly requires a plaintiff to show actual reliance upon the apparent authority of the hospital to control the allegedly negligent physician. See 9 J.L. & Health 319, 341. Many courts, when initially faced with claims of "apparent authority"/"ostensible agency"/ "agency by estoppel" in a hospital setting, claim to adopt Agency § 267, but erroneously negate the requisite element of reliance. These courts fail to recognize that they actually adopted Torts § 429, the more lenient standard. This negation results in an abrogation of Agency § 267 and, moreover, a means by which a state can hold a hospital, in essence, strictly liable for negligent treatment by their physicians retained as independent contractors. See 9 J.L. & Health 319, 337 .

Article Publication Date