Shepard v. Sisters of Providence is Oregon, 102 Or App 196, appeal after remand (1990).
Patient brought a medical malpractice case against a hospital, alleging that she was injured during surgery performed at the hospital by a surgical resident who was employed by Oregon Health Sciences University. The issue was whether the hospital was vicariously liable for the conduct of the resident. Plaintiff argued that the resident was the hospital’s agent for purposes of the surgery, while the hospital argued that the resident was the university’s agent. The court held that evidence concerning a complex affiliation program and agreement between the hospital and the university raised a jury question as to whether the hospital had the right of control over the resident.
Jones v. Salem Hospital, 93 Or App 252 (1988), rev den, 307 Or 514 (1989).
Minor plaintiff brought suit against physicians and hospital alleging negligent treatment during and subsequent to his birth. Trial court granted the defendants’ motion to dismiss on the grounds that the action was time-barred because it was brought after the five-year period of ultimate repose for medical malpractice actions. ORS 12.110(4). An issue on appeal was whether the alleged "misleading representations" tolled the statute of limitations. ORS 12.110(4) provides that in the case of fraud, deceit or misleading representation the statute is tolled for two years from time when such fraud, deceit or misleading representation should have been discovered. The court held that an unintentional contemporaneous misrepresentation does not toll the statute of repose if the alleged misrepresentation simply asserts proper performance of a medical procedure which is the gravamen of the complaint. See also Skuffeeda v. St. Vincent Hospital, 77 Or App 477, rev den, 301 Or 240 (1986); Duncan v. Augter, 268 Or 723 (1970).
A hospital may be vicariously liable for the "misleading representations" made by apparent agents of the hospital. Physicians who are independent contractors may be apparent agents of a hospital when they perform professional services which are integral to hospital operations and which hospitals hold themselves out to the public to provide such as emergency, radiology and pathology services. The court concluded that the pediatric services which were at issue in this case were among the general run of professional specialities and were not integral to hospital operations. Therefore, plaintiff’s claims against the hospital were barred by the statute of repose provision of ORS 12.110(4).
Shepard v. Sisters of Providence in Oregon, 89 Or App 579 (1988).
Patient brought a medical malpractice action against a hospital alleging negligence against a surgical resident who assisted the primary surgeon in performing an operation at the hospital. The resident, an employee of Oregon Health Sciences University, was assigned to the hospital on rotation. Following a verdict for the hospital, the trial court granted a new trial on the grounds that the trial court erred in failing to give plaintiff’s requested instructions on ostensible and dual agency. A physician who is an independent contractor may be treated as an actual or ostensible agent of the hospital for purposes of vicarious liability when they perform professional services which are integral to hospital operations and which hospitals hold themselves out to provide. The fact that the resident was an employee of the medical school and not the hospital is perhaps some evidence that the resident was not the agent of the hospital but it does not determine as a matter of law that he was not. The jury could have found that the resident was the hospital’s agent as well as the university’s.
Themins v. Emanuel Lutheran, 54 Or App 901 (1981), rev den, 292 Or 568 (1982).
Plaintiff brought an action against an orthopedic resident and a hospital for negligent care and treatment leading to the amputation of plaintiff’s right foot. The orthopedic resident was an employee of Oregon Health Sciences University and was assigned to the defendant hospital’s emergency room on rotation. Trial court erred in granting the hospital’s motion for summary judgment. A jury could find that the resident was an actual agent of the hospital if he was performing an inherent function of the hospital without which the hospital could not properly achieve its purpose. The jury could also find that the resident was an ostensible agent of the hospital under the Restatement (Second) Agency § 267 because the hospital had undertaken to provide emergency room services to the community and the plaintiff did not have a duty to inquire whether the resident was an employee of the hospital.
APPEALS
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