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Whitlow v. Rideout Memorial Hospital C074810 D.J. cite: 2015 DJDAR 6374 3rd District

Hospital not entitled to summary judgment where triable issue of fact remains regarding ostensible agency.

Dean Whitlow took his mother to Rideout Memorial Hospital after she screamed she had the worst headache of her life. As she sat in the hospital crying in pain, she signed a “Conditions of Admissions” form, which stated in part that doctors were independent contractors and not agents of the hospital. A sign in the emergency department stated that emergency physician services are billed separately from the hospital’s services. Emergency room physician Robert Martin diagnosed Whitlow’s mother with a tension headache and released her. Martin was wearing an insignia on his clothing that said “California Emergency Physicians.” Whitlow’s mother died two days later of a massive temporal hemorrhage. Her surviving children sued for wrongful death. The court granted the hospital’s motion for summary judgment, finding that Martin was not an ostensible agent of the hospital.

Reversed. A hospital is liable for a physician’s malpractice when the physician is an “ostensible agent of the hospital.” Ostensible agency can be inferred when the plaintiff seeks treatment at the hospital without being informed that the doctors are independent contractors. Unless the evidence conclusively indicates the patient should have known the physician was not the hospital agent, the issue of ostensible agency must be decided by the trier of fact. Here, the hospital cannot absolve itself from liability when the decedent signed the admissions form when she was crying in pain and vomiting from the worst headache of her life. The posted signs and insignia also do not compel summary judgment. Partial publication.