• What was understood. The patient, relying on the facility's com-
munications or actions, concluded that the subcontractor had the
authority to act on the facility's behalf. In other words, a patient's
observing of a subcontractor's actions in and of itself would not be
sufficient grounds to establish apparent agency.
• What was accepted. The patient accepted the services that the
subcontractor rendered based on what he or she believed to be an
agency relationship between the subcontractor and the facility, and
not just based on the contracted provider's skill level. Put another
way: the patient believes that the facility is providing a staff member
to attend to his or her needs, not that he or she is accepting the serv-
ices of an independent contractor.
Pitfalls and protection
What makes vicarious liability particularly troublesome in the context
of outpatient surgical facilities is that it is generally a facility, and not
the patients themselves, that selects the providers of ancillary services
for a case. Additionally, in light of the criteria set forth by recent court
rulings on the subject, it becomes apparent that few facilities would
be able to escape vicarious liability in a lawsuit that's based on the
apparent authority of a subcontractor. While these factors somewhat
limit your ability to eliminate your facility's risk, here are 3 steps you
can take to minimize it.
• Let patients know who's who. Most importantly, make sure you
notify patients that individuals who are not acting as a direct agent of
your facility will provide certain perioperative services.
• Notify patients via forms and signage. Amend your patient admis-
sion forms and post signs at intake to emphasize the independence of
all non-employee personnel, since delivering this information after
treatment has begun or when the patient has been medicated or is in
Legal Update
LU
3 2 • O U T PA T I E N T S U R G E R Y M A G A Z I N E • J U l y 2 0 1 6
