Outpatient Surgery Magazine

Compounding Disaster - July 2016 - Subscribe to Outpatient Surgery Magazine

Outpatient Surgery Magazine, providing current information on Surgical Services, Surgical Facility Administration, Outpatient Surgery News and Trends, OR Excellence and more.

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Page 30 of 168

outsourced services do not insulate your facility from liability. Facilities have in the past escaped liability for the acts or omissions of independent contractors on site. Because the contractors were not directly employed by the facility, they argued, the facility was shielded from responsibility for their actions. The legal tide has turned, however, and a number of court rulings have since established a precedent that holds facilities liable for contractors' as well as employees' acts (see "Court: Hospital Liable for Contracted Anesthesiologist"). As a result, a surgical facility may be subject to vicarious liability if an "apparent agency" relationship exists between the facility and the contracted entity. That is to say, if a patient reasonably believes that a subcontractor is acting on the facility's orders and under its direct control, wholly representing the facility, she could conceivably file a medical malpractice lawsuit seeking damages from the facility. What is apparent agency? In order to establish apparent agency, and thereby to assert a claim for vicarious liability from a surgical facility, a medical malpractice lawsuit must demonstrate the following 3 factors. • What was communicated. The facility's communications with the patient created an impression that the independent contractor had the ability to act on the facility's behalf. For example: staff employees refer to a subcontractor in a manner that leads the patient to conclude that the subcontractor is also a staff member. J U l y 2 0 1 6 • O U T PA T I E N TS U R G E R Y. N E T • 3 1 Apparent Agency Apparent agency applies when a hospital, by its actions, has held out a particular physician as its agent and/or employ- ee and a patient has accepted treatment from that physician in the rea- sonable belief that it is being rendered on behalf of the hospital.

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