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1. Evidence; Witnesses--nurse--qualifications--opinion about medical causation
The trial court erred in a medical malpractice case by granting summary judgment in
favor of defendant Forsyth Memorial Hospital, Inc. (FMH), and the case is remanded for further
proceedings with respect to the claims based on the acts of the hospital nursing staff, because: (1)
plaintiff forecast sufficient evidence that their nurse witness was qualified to testify as an expert
under N.C.G.S. § 8C-1, Rule 702(b)(2) when the deposition offered by defendants concerning the
witness does not necessarily contradict the affidavit offered by plaintiff, the witness's affidavit
stated that floor nurses are usually registered nurses, and the difference between the witness's
work experiences and the work experience of the hospital nursing staff goes to the weight but not
the admissibility of the witness's evidence; (2) plaintiff's expert was qualified to give an opinion
about medical causation even though she was a nurse and not a licensed physician; and (3) FMH
employed the nurses.
2. Medical Malpractice_acts of nurses_hospital owners not liable
The trial court did not err in a medical malpractice case by entering summary judgment in
favor of defendants Novant Health, Inc. and Novant Health Triad Region, L.L.C., the owners of
Forsyth Memorial Hospital, with respect to claims based on the acts of the hospital nursing staff,
because: (1) these defendants did not employ the hospital nursing staff; and (2) plaintiffs did not
offer evidence that the hospital loaned the employees to the owners or that the owners had in fact
supervised and controlled the pertinent individuals.
3. Medical Malpractice-_anesthesiology services--apparent agency
The trial court erred in a medical malpractice case by entering summary judgment in
favor of defendant Forsyth Memorial Hospital (FMH) but did not err by entering summary
judgment in favor of defendants Novant Health Triad Region, L.L.C. (NHTR) and Novant
Health, Inc. (NHI), the owners of FMH, with respect to the claims of negligence of the
anesthesiology defendants based on apparent agency, because: (1) in regard to FMH, plaintiff
submitted sufficient evidence of apparent authority when a jury could decide based on the
consent form that plaintiff was, through the form, requesting anesthesia services from FMH and
that, given the distinction made between plaintiff's personal physician and the unnamed
anesthesiologist, plaintiff was accepting those services in the reasonable belief that the services
would be provided by the hospital and its employees; and (2) in regard to NHTR and NHI, the
record contains no evidence they, as opposed to the hospital, held themselves out as providing
anesthesia services or that they contracted to supply the services.
4. Discovery--documents--attorney-client privilege--work product doctrine
The trial court erred by denying plaintiff's motion to compel defendant hospital to
produce documents in its risk management file pertaining to the perforation of plaintiff's
esophagus during surgery on the ground that the documents were protected under N.C.G.S. 1A-1,Rules 26(b)(3) by the attorney-client privilege and the work product doctrine where the record is
insufficient to show whether the documents were prepared in the ordinary course of business
pursuant to hospital policy or were prepared in anticipation of litigation, and this cause is
remanded for findings as to the author of each document, the date each document was prepared,
the purpose for which each document was prepared, and the recipients of each document.
5. Discovery--statistical reports--motion to compel
The trial court did not err in a medical malpractice case by denying plaintiff's motion to
compel production of all statistical reports for Forsyth Medical Center for infection control for
1996-2000, because: (1) although plaintiff contends the documents would be admissible under
N.C.G.S. § 8C-1, Rule 404(b), plaintiff does not explain to what issue in this case a pattern,
practice, plan, or modus operandi would be relevant; and (2) in the absence of such a showing,
the Court of Appeals cannot conclude the trial court's ruling denying this request was manifestly
unreasonable.
Kennedy, Kennedy, Kennedy & Kennedy, L.L.P., by Harvey L.
Kennedy, Harold L. Kennedy, III, and Annie Brown Kennedy; and
Law Offices of Willie M. Kennedy, by Willie M. Kennedy, for
plaintiff-appellant.
Bennett & Guthrie, P.L.L.C., by Richard V. Bennett, Roberta B.
King, and Joshua H. Bennett, for defendants-appellees.
Sharpless & Stavola, P.A., by Joseph P. Booth, III, for Joseph
McConville, M.D., Sheila Crumb, and Piedmont Anesthesia & Pain
Consultants, P.A., amicus curiae.
GEER, Judge.
This appeal results from a medical malpractice action arising
out of gall bladder surgery performed on plaintiff Mary Louise
Diggs at the Forsyth Medical Center. Plaintiff's complaint alleges
that defendants Forsyth Memorial Hospital, Inc., Novant Health,
Inc., and Novant Health Triad Region, L.L.C. (collectively the
"hospital defendants") are vicariously liable for the negligence of(1) the hospital nursing staff and (2) the team assigned to
administer anesthesiology to plaintiff during her gall bladder
surgery. Plaintiff has appealed from the trial court's order
granting summary judgment in favor of the hospital defendants.
Based upon our review of the record, we hold that plaintiff
has failed to establish a basis for holding Novant Health, Inc.
("NHI") or Novant Health Triad Region, L.L.C. ("NHTR") liable and,
therefore, affirm the entry of summary judgment in favor of those
two defendants. With respect to Forsyth Memorial Hospital, Inc.
("FMH"), however, we reverse.
In arguing that it is entitled to judgment as to plaintiff's
claims based on the negligence of the hospital's nursing staff, FMH
has only challenged the competency of the testimony of plaintiff's
nursing expert. Since we hold that the testimony was admissible
under N.C.R. Evid. 702 and State v. Tyler, 346 N.C. 187, 204, 485
S.E.2d 599, 608, cert. denied, 522 U.S. 1001, 139 L. Ed. 2d 411,
118 S. Ct. 571 (1997), the trial court erred in granting summary
judgment on plaintiff's claims based on the negligence of the
nursing staff. With respect to the anesthesiology team, FMH has
argued that it could not be held vicariously liable because the
individuals responsible for the anesthesia were independent
contractors. Although we agree with FMH that plaintiff has failed
to present sufficient evidence of actual agency, the record reveals
that genuine issues of material fact exist regarding the apparent
agency of the anesthesiology team. Accordingly, we hold that thetrial court also erred in granting summary judgment to FMH as to
the claims based on the negligence of the anesthesiology team.
(2) During the year immediately
preceding the date of the occurrence
that is the basis for the action,
the expert witness must have devoted
a majority of his or her
professional time to either or both
of the following:
a. The active clinical practice of
the same health profession in
which the party against whom or
on whose behalf the testimony
is offered, and if that party
is a specialist, the active
clinical practice of the same
specialty or a similar
specialty which includes within
its specialty the performance
of the procedure that is the
subject of the complaint and
have prior experience treating
similar patients . . . .
Defendants contend that Ms. Harris-Offutt is unqualified under Rule
702(b) because she had not been active in the clinical practice of
nursing in the year preceding plaintiff's injury.
In support of their contention, defendants point to the
deposition testimony of Janet Day Berrier, a representative of
Thomasville Medical Center where Ms. Harris-Offutt was at one time
employed. Ms. Berrier testified that the last date that Ms.
Harris-Offutt worked for Thomasville Medical Center as a certified
registered nurse anesthetist was 31 December 1986. Plaintiff, on
the other hand, filed an affidavit from Ms. Harris-Offutt, stating:
"During the year immediately preceding October 12, 1999, I devoteda majority of my professional time to the active clinical practice
of nursing as a registered nurse[.]"
Although defendants point to Ms. Harris-Offutt's deposition as
showing that she spends her time as a legal consultant rather than
as a nurse, Ms. Harris-Offutt also stated in her deposition that
she spends part of her time in the clinical practice of nursing and
part of her time engaging in legal consulting. Thus, the
deposition offered by defendants does not necessarily contradict
the affidavit offered by plaintiff.
Defendants further argue that Ms. Harris-Offutt's clinical
work is not relevant since she worked as a registered nurse and not
as a floor nurse. Ms. Harris-Offutt's affidavit states, however:
There is no specialty in nursing known as
"floor nursing." Floor nurses in hospitals
are usually registered nurses. Registered
nurses are not limited to the hospital
setting, but work in many different settings
including nursing homes, the private offices
of physicians and the private offices of
registered nurses[.]
Defendants offered no expert testimony to the contrary.
Defendants' remaining arguments regarding the differences
between Ms. Harris-Offutt's work experiences and the work
experience of the hospital nursing staff go to the weight, but not
the admissibility, of Ms. Harris-Offutt's evidence. Howerton v.
Arai Helmet, Ltd., 358 N.C. 440, 461, 597 S.E.2d 674, 688 (2004)
(holding that once an expert has passed Rule 702's threshold of
admissibility, "lingering questions or controversy concerning the
quality of the expert's conclusions go to the weight of the
testimony rather than its admissibility"). Thus, for purposes ofsummary judgment, plaintiff has forecast sufficient evidence that
Ms. Harris-Offutt is qualified to testify under Rule 702(b)(2).
B. Nurse Expert's Testimony Regarding Medical Causation
Plaintiff and defendants also disagree as to whether Ms.
Harris-Offutt is qualified to give an opinion about medical
causation because she is a nurse and not a licensed physician.
Defendants' position has been rejected by our Supreme Court.
In State v. Tyler, 346 N.C. 187, 204, 485 S.E.2d 599, 608
(emphasis added) (internal citations omitted) (quoting State v.
Mitchell, 283 N.C. 462, 467, 196 S.E.2d 736, 739 (1973)), cert.
denied, 522 U.S. 1001, 139 L. Ed. 2d 411, 118 S. Ct. 571 (1997),
the Supreme Court held:
"The essential question in determining the
admissibility of opinion evidence is whether
the witness, through study or experience, has
acquired such skill that he was better
qualified than the jury to form an opinion on
the subject matter to which his testimony
applies." The evidence in the present case
clearly indicates that [Nurse] Rosenfeld,
through both study and experience, was better
qualified than the jury to form an opinion on
the cause of Fleetwood's death and on the
effect of the sedative medication Versed.
Rosenfeld's position as a nurse was merely a
factor to be considered by the jury in
evaluating the weight and credibility of her
testimony.
See also State v. White, 340 N.C. 264, 294, 457 S.E.2d 841, 858
("Nurses are qualified to render expert opinions as to the cause of
a physical injury even though they are not licensed to diagnose
illnesses or prescribe treatment, and there is no basis for any
preference of licensed physicians for such medical testimony."),
cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436, 116 S. Ct. 530(1995). These decisions are controlling. Ms. Harris-Offutt's
testimony as to medical causation cannot be excluded simply because
she is not a physician.
In sum, we hold that plaintiff has made the necessary forecast
that Ms. Harris-Offutt is qualified to render expert testimony
under Rule 702(b)(2) and that prior case law establishes that she
may testify regarding medical causation. Since defendants have
relied upon no other argument to justify summary judgment in
connection with negligence by the hospital staff nurses, we further
hold that the trial court erred in granting summary judgment as to
those claims with respect to FMH, which employed the nurses.
C. Liability of NHI and NHTR
[2] Defendants NHI and NHTR, however, argue that the trial
court properly dismissed them as defendants because they did not
employ the hospital nursing staff. They submitted evidence that
NHI is "the sole member" of NHTR, while NHTR is "the sole member"
of FMH, which operates FMC. Further, according to defendants'
evidence, "[n]either [NHTR] nor [NHI] operate the hospital
presently known as Forsyth Medical Center." Specifically, "all of
the employees of Forsyth Medical Center . . . are employed by
Forsyth Memorial Hospital, Inc." Plaintiff has presented no
contrary evidence.
Instead, plaintiff cites Cahill v. HCA Mgmt. Co., 812 F.2d 170
(4th Cir. 1987), in support of her contention that "[b]oth the
owners and operators of a hospital can be held liable for the
negligence of its employees, servants and agents." In Cahill, thedistrict court had entered a directed verdict in favor of a
hospital management company when the negligent individual was
employed by the hospital and not the management company. The
Fourth Circuit reversed the directed verdict because the plaintiff
presented evidence that the hospital loaned the employee to the
management company and the management company had in fact
supervised and controlled the individual. Id. at 171. Plaintiff
in this case has offered no comparable evidence. Accordingly, the
trial court properly entered summary judgment in favor of NHTR and
NHI with respect to the claims based on the acts of the hospital
nursing staff.
II. Plaintiff's Claims Based on Negligence of the Anesthesiology
Defendants
[3] Plaintiff has also asserted claims against the hospital
defendants based on the negligence of the anesthesiology
defendants, including Dr. McConville, Ms. Crumb, and Piedmont. The
hospital defendants contend that the trial court properly granted
summary judgment because the anesthesiology defendants were
independent contractors and not employees of the hospital.
Plaintiff, on the other hand, argues that she has offered
sufficient evidence of actual agency, apparent agency, and a non-
delegable duty to warrant denial of the motion for summary
judgment.
A. Liability Based on Actual Agency
As this Court has held, "[u]nder the doctrine of respondeat
superior, a hospital is liable for the negligence of a physician or
surgeon acting as its agent. There will generally be no vicariousliability on an employer for the negligent acts of an independent
contractor." Hylton v. Koontz, 138 N.C. App. 629, 635, 532 S.E.2d
252, 257 (2000) (internal citations omitted), disc. review denied,
353 N.C. 373, 546 S.E.2d 603 (2001). This Court has established
that "[t]he vital test in determining whether an agency
relationship exists is to be found in the fact that the employer
has or has not retained the right of control or superintendence
over the contractor or employee as to details." Id. at 636, 532
S.E.2d at 257 (internal quotation marks omitted). Specifically,
"'the principal must have the right to control both the means and
the details of the process by which the agent is to accomplish his
task in order for an agency relationship to exist.'" Wyatt v. Walt
Disney World Co., 151 N.C. App. 158, 166, 565 S.E.2d 705, 710
(2002) (emphasis added) (quoting Williamson v. Petrosakh Joint
Stock Co. of the Closed Type, 952 F. Supp. 495, 498 (S.D. Tex.
1997)). See also Hoffman v. Moore Reg'l Hosp., Inc., 114 N.C. App.
248, 251, 441 S.E.2d 567, 569 (holding that the principal must have
"control and supervision over the details of the [agent's] work"),
disc. review denied, 336 N.C. 605, 447 S.E.2d 391 (1994).
In arguing that an agency relationship existed, plaintiff
relies exclusively on two contracts entered into between Piedmont
and FMH: the Anesthesia Agreement and the Anesthesia Services
Agreement.
(See footnote 3)
The Anesthesia Services Agreement specificallyprovided, however, that "FMH shall neither have nor exercise any
control or direction over the methods by which [Piedmont] or any
Physician shall perform it or his work and functions; the sole
interest and responsibility of FMH and the Hospital are to assure
that the services covered by this Agreement shall be performed and
rendered in a competent, efficient and satisfactory manner."
Further, under the agreements, (1) the physicians associated with
Piedmont are not prohibited from practicing outside of the
Hospital; (2) Piedmont and the hospital bill patients separately
for their respective services; (3) Piedmont is responsible for
meeting its own hiring needs; and (4) Piedmont is responsible for
managing its own scheduling. Our review of the agreements and
depositions in the record does not reveal that the hospital
defendants had any "right to control the manner or method" of the
anesthesiology work performed by Piedmont and its personnel.
Hylton, 138 N.C. App. at 636, 532 S.E.2d at 257 (internal quotation
marks omitted).
The contractual terms relied upon by plaintiff in opposing
summary judgment do not address the actual provision of anesthesia
services to patients. Instead, plaintiff primarily points to FMH's
right (1) to require that doctors employed by Piedmont become
members of FMH's Medical-Dental Staff and that they comply with the
rules and regulations governing that Staff, (2) to approve and
credential all Piedmont nurse anesthetists, and (3) to require
Piedmont to remove from FMH's anesthesia service any physician for
specified grounds. These provisions, however, relate only to ahospital's duty to ensure that all medical personnel permitted to
provide services to FMH patients are qualified to do so. See
Blanton v. Moses H. Cone Mem'l Hosp., Inc., 319 N.C. 372, 376, 354
S.E.2d 455, 458 (1987) ("We hold that a reasonable man of ordinary
prudence in the position of the hospital owes a duty of care to its
patients to ascertain that a doctor is qualified to perform an
operation before granting him the privilege to do so."). They do
not establish the degree of control necessary for agency.
The remaining provisions cited by plaintiff constitute general
policies detailing how the two businesses _ FMH and Piedmont _
would cooperate and coordinate their work. As such, they cannot
support a finding of agency. See Hoffman, 114 N.C. App. at 251,
441 S.E.2d at 569 (holding that "general policy rules . . . are not
indicative of that kind of control and supervision over the details
of a physician's work that a plaintiff must show in order to prove
that there was an employer-employee relationship").
We hold that the provisions in the agreements between Piedmont
and FMH are materially indistinguishable from those in Hylton and
Hoffman that this Court held, in the absence of any further
evidence, warranted summary judgment. See Hylton, 138 N.C. App.
at 636-37, 532 S.E.2d at 257-58 (upholding grant of summary
judgment when the anesthesiology agreement provided that the
hospital would have no control over the method and means by which
the anesthesiologists performed their work, the physicians were not
precluded from practicing outside the hospital, the physicians
received no compensation from the hospital, the parties billed thepatient separately, and the hospital did not schedule the
physicians); Hoffman, 114 N.C. App. at 250-51, 441 S.E.2d at 569
(upholding grant of summary judgment when the physician was a
member of a private group, the physician's schedule was determined
by the group rather than the hospital, and the patient was billed
for the physician's services by the group and not the hospital).
Plaintiff has, therefore, failed to present sufficient evidence to
establish a prima facie case of actual agency.
B. Liability Based on Apparent Agency
It is well-established that even in the absence of an agency
relationship, "'[w]here a person, by words or conduct, represents
or permits it to be represented that another is his agent, he will
be estopped to deny the agency as against third persons, who have
dealt, on the faith of such representation, with the person so held
out as agent, even if no agency exists in fact.'" Univ. of N.C. v.
Shoemate, 113 N.C. App. 205, 215, 437 S.E.2d 892, 898 (quoting
Barrow v. Barrow, 220 N.C. 70, 72, 16 S.E.2d 460, 461 (1941)),
disc. review denied, 336 N.C. 615, 447 S.E.2d 413 (1994). This
doctrine of apparent agency was first considered by our Supreme
Court as a basis for hospital liability for malpractice in Smith v.
Duke Univ., 219 N.C. 628, 14 S.E.2d 643 (1941), overruled on other
grounds by Rabon v. Rowan Mem'l Hosp., Inc., 269 N.C. 1, 152 S.E.2d
485 (1967).
The Court initially established the principle _ addressed
above _ that evidence that a physician has privileges at a hospital
is not sufficient, standing alone, to make the physician an agentof the hospital: "Ordinarily, the hospital undertakes only to
furnish room, food, facilities for operation, and attendance, and
is not liable for damages resulting from the negligence of a
physician in the absence of evidence of agency, or other facts upon
which the principle of respondeat superior can be applied." Id.
at 634, 14 S.E.2d at 647. After concluding that the plaintiff had
failed to demonstrate that the doctor _ the patient's treating
physician _ was an agent of the hospital, the Supreme Court turned
to the question of apparent agency:
There was no evidence that [the doctor]
in treating [the patient] assumed to act for
Duke University otherwise than in his
individual capacity as a practicing physician,
or that [the doctor] was held out by the
defendant as having been employed by it to
treat pay patients, or that the hospital
undertook to furnish physicians and surgeons
for the treatment of the maladies of patients,
and hence no liability can attach to defendant
on the theory that [the doctor] was acting
within the scope of an apparent authority or
employment.
Id. at 635, 14 S.E.2d at 648 (emphasis added).
Our Supreme Court has since recognized that, in the years
following Smith, the nature of hospitals has substantially changed.
After observing that the Smith assumptions regarding hospitals were
"no longer appropriate in this era," Harris v. Miller, 335 N.C.
379, 389, 438 S.E.2d 731, 736-37 (1994), the Court explained:
First of all, hospitals are now in the
business of treatment. As stated in Rabon v.
[Rowan Memorial] Hospital:
"The conception that the hospital
does not undertake to treat the
patient, does not undertake to act
through its doctors and nurses, butundertakes instead simply to procure
them to act upon their own
responsibility, no longer reflects
the fact. Present day hospitals, as
their manner of operation plainly
demonstrates, do far more than
furnish facilities for treatment.
They regularly employ on a salary
basis a large staff of physicians,
nurses and internes [sic], as well
as administrative and manual
workers, and they charge patients
for medical care and treatment,
collecting for such services, if
necessary, by legal action.
Certainly, the person who avails
himself of 'hospital facilities'
expects that the hospital will
attempt to cure him, not that its
nurses or other employees will act
on their own responsibility."
Id., 438 S.E.2d at 737 (quoting Rabon, 269 N.C. at 11, 152 S.E.2d
at 492).
In applying the doctrine of apparent agency, courts throughout
the country have struggled with this change in the nature of
hospitals from institutions providing only facilities to
institutions actually providing medical services, such as emergency
room care or, as in this case, anesthesia. In Sword v. NKC Hosps.,
Inc., 714 N.E.2d 142 (Ind. 1999), the Indiana Supreme Court
conducted a helpful and detailed analysis of the applicability of
apparent agency with respect to a hospital's liability for
negligence in the provision of services, such as anesthesia, by
independent contractors.
In surveying other jurisdictions, the Indiana Supreme Court
noted that courts have employed apparent agency to hold hospitals
liable for the negligence of independent contractors in bothemergency room and anesthesia contexts. Id. at 150. The court
explained:
While the language employed by these courts
sometimes varies, generally they have employed
tests which focus primarily on two basic
factors. The first factor focuses on the
hospital's manifestations and is sometimes
described as an inquiry whether the hospital
acted in a manner which would lead a
reasonable person to conclude that the
individual who was alleged to be negligent was
an employee or agent of the hospital. Courts
considering this factor often ask whether the
hospital held itself out to the public as a
provider of hospital care, for example, by
mounting extensive advertising campaigns. In
this regard, the hospital need not make
express representations to the patient that
the treating physician is an employee of the
hospital; rather a representation also may be
general and implied. The second factor
focuses on the patient's reliance. It is
sometimes characterized as an inquiry as to
whether the plaintiff acted in reliance upon
the conduct of the hospital or its agent,
consistent with ordinary care and prudence.
Id. at 151 (internal quotation marks and citations omitted). With
respect to the reliance factor, the court pointed out that some
jurisdictions ask whether the plaintiff reasonably believed that
the hospital was providing the pertinent medical care, while other
jurisdictions presume reliance. Id. Over all, the court concluded
that "[c]entral to both of these factors _ that is, the hospital's
manifestations and the patient's reliance _ is the question of
whether the hospital provided notice to the patient that the
treating physician was an independent contractor and not an
employee of the hospital." Id.
Following its survey of the development of the law in other
jurisdictions, the Indiana Supreme Court adopted the formulation ofapparent agency set forth in the Restatement (Second) of Torts §
429 (1965). Sword, 714 N.E.2d at 152. That section of the
Restatement provides:
One who employs an independent contractor to
perform services for another which are
accepted in the reasonable belief that the
services are being rendered by the employer or
by his servants, is subject to liability for
physical harm caused by the negligence of the
contractor in supplying such services, to the
same extent as though the employer were
supplying them himself or by his servants.
Restatement (Second) of Torts § 429. The Indiana Supreme Court
construed § 429 to require that the "trier of fact . . . focus on
the reasonableness of the patient's belief that the hospital or its
employees were rendering health care." Sword, 714 N.E.2d at 152.
According to Sword,
This ultimate determination is made by
considering the totality of the circumstances,
including the actions or inactions of the
hospital, as well as any special knowledge the
patient may have about the hospital's
arrangements with its physicians. We conclude
that a hospital will be deemed to have held
itself out as the provider of care unless it
gives notice to the patient that it is not the
provider of care and that the care is provided
by a physician who is an independent
contractor and not subject to the control and
supervision of the hospital. A hospital
generally will be able to avoid liability by
providing meaningful written notice to the
patient, acknowledged at the time of
admission.
Id. The court noted, however, that written notice might not
suffice if the patient did not have an adequate opportunity to make
an informed choice, such as in the case of a medical emergency.
Id. After conducting a similar survey of the development of the
law nationwide, the South Carolina Supreme Court also chose to
adopt the approach set out in the Restatement (Second) of Torts §
429. Simmons v. Tuomey Reg'l Med. Ctr., 341 S.C. 32, 50-51, 533
S.E.2d 312, 322 (2000). The court held:
Under section 429, the plaintiff must
show that (1) the hospital held itself out to
the public by offering to provide services;
(2) the plaintiff looked to the hospital,
rather than the individual physician, for
care; and (3) a person in similar
circumstances reasonably would have believed
that the physician who treated him or her was
a hospital employee. When the plaintiff does
so, the hospital will be held vicariously
liable for any negligent or wrongful acts
committed by the treating physician.
Id. at 51, 533 S.E.2d at 322. The court limited application of
this test "to those situations in which a patient seeks services at
the hospital as an institution, and is treated by a physician who
reasonably appears to be a hospital employee." Id. at 52, 533
S.E.2d at 323. It stressed that its holding did "not extend to
situations in which the patient is treated in an emergency room by
the patient's own physician after arranging to meet the physician
there. Nor does our holding encompass situations in which a
patient is admitted to a hospital by a private, independent
physician whose only connection to a particular hospital is that he
or she has staff privileges to admit patients to the hospital.
Such patients could not reasonably believe his or her physician is
a hospital employee." Id.
Comparable tests have been adopted in numerous other
jurisdictions, particularly with respect to the rendering ofanesthesia or emergency services. See, e.g., Gilbert v. Sycamore
Mun. Hosp., 156 Ill. 2d 511, 525, 622 N.E.2d 788, 796 (1993)
(concluding (1) that the element of "holding out" is "satisfied if
the hospital holds itself out as a provider of emergency room care
without informing the patient that the care is provided by
independent contractors," and (2) "[t]he element of justifiable
reliance on the part of the plaintiff is satisfied if the plaintiff
relies upon the hospital to provide complete emergency room care,
rather than upon a specific physician"); Gatlin v. Methodist Med.
Ctr., Inc., 772 So. 2d 1023, 1027 (Miss. 2000) (with respect to a
hospital's liability for the acts of an independent contractor
anesthesiologist, holding that the controlling "analysis seeks to
determine whether the patient was seeking treatment from the
hospital, without regard for the identity of the particular
physicians working at the hospital, or whether the patient instead
sought the services of a particular physician who merely happened
to be on staff at a particular hospital"); White v. Methodist Hosp.
South, 844 S.W.2d 642, 647-48 (Tenn. Ct. App. 1992) (allowing, with
respect to the provision of anesthesia services, an inference of
reliance when a hospital offers a service and the patient has no
choice as to who will perform that service); Pamperin v. Trinity
Mem'l Hosp., 144 Wis. 2d 188, 210, 423 N.W.2d 848, 857 (1988)
("[W]e conclude that, if [plaintiff] proves that [the hospital]
held itself out as a provider of emergency room care without
informing [plaintiff] that the care was provided by independent
contractors, [plaintiff] has satisfied the first requirement forproving liability under the doctrine of apparent authority. . . .
In determining that a plaintiff acted in reliance upon the conduct
of the hospital or its agent, . . . [c]ourts have uniformly
recognized that, except when the patient enters a hospital
intending to receive care from a specific physician while in the
hospital, it is the reputation of the hospital itself upon which a
patient relies.").
We believe the analysis of these jurisdictions is persuasive
and consistent with the prior holdings of our appellate courts. In
Smith, our Supreme Court suggested that apparent agency would be
applicable to hold the hospital liable for the acts of an
independent contractor if the hospital held itself out as providing
services and care. 219 N.C. at 635, 14 S.E.2d at 648. In
Shoemate, this Court established that this "holding out" may be
accomplished through either verbal representations or conduct. 113
N.C. App. at 215, 437 S.E.2d at 898.
This Court has also addressed the element of reliance in
circumstances similar to those addressed by the Restatement
(Second) of Torts § 429: when the patient has relied upon a medical
provider to render medical services, but that provider has caused
those services to be provided by an independent contractor. In
Noell v. Kosanin, 119 N.C. App. 191, 196-97, 457 S.E.2d 742, 746
(1995), the plaintiff chose a surgeon to perform her plastic
surgery based on his reputation. That surgeon used a particular
anesthesiologist, who was an independent contractor, to administer
anesthesia to all of his patients requiring general anesthesia. Id. at 196, 457 S.E.2d at 746. Consistent with this practice, the
plaintiff received a pamphlet stating that the anesthesiologist
worked jointly with the surgeon. This Court held that "[t]hese
facts are sufficient to create a jury question as to whether
plaintiff reasonably assumed [the surgeon] was in charge of her
entire surgical procedure, including anesthesia care and recovery."
Id. at 197, 457 S.E.2d at 746. This holding parallels the
principle in the Restatement (Second) of Torts § 429, which asks
whether a patient accepts services from an independent contractor
"in the reasonable belief that the services are being rendered by
the employer or by his servants."
This Court pursued a similar analysis in Sweatt v. Wong, 145
N.C. App. 33, 549 S.E.2d 222 (2001), in which the plaintiff
engaged a particular surgeon to remove her gallbladder. While the
patient was still in the hospital recovering, that surgeon went on
vacation, leaving the plaintiff in the care of another doctor, who
was an independent contractor. In holding that the trial court had
properly denied a motion for judgment notwithstanding the verdict
because issues of fact existed as to apparent agency, this Court
stressed that the patient was not given a choice as to which
physician would continue her care in the surgeon's absence, but
rather the surgeon had simply announced that the second doctor had
assisted him in the surgery and would take good care of the
patient. Id. at 42, 549 S.E.2d at 227. This Court held that these
facts were sufficient for a finding that the patient justifiably
relied upon representations of agency. Id. This analysis, likethat of § 429 and Noell, does not require any showing of a change
of position by the patient, but rather focuses on whether the
patient was relying upon the surgeon to provide services and
reasonably believed that the second doctor was an agent of the
surgeon.
Defendants point to Hoffman as establishing a different test.
As this Court explained in Sweatt, however, "[i]n [Hoffman], the
plaintiff patient sought to recover damages for alleged medical
negligence from a hospital under the theory of respondeat superior
for the negligence of the treating physician who was found to be an
independent contractor." Id. (emphasis added). Although the
plaintiff in Hoffman, who was admitted to a hospital at the request
of her private physician for a particular procedure, did not choose
the doctor who would perform that procedure, the consent form
specifically listed five possible doctors and the patient was
looking to one of those doctors to provide her care. 114 N.C. App.
at 249-50, 441 S.E.2d at 569. The case fell squarely within the
traditional Smith analysis regarding treating physicians. There
was no indication in the opinion that the hospital was holding
itself out as providing the services involved as opposed to simply
providing facilities for the performance of the procedure by
private practitioners. Under those circumstances, this Court
required evidence "that Mrs. Hoffman would have sought treatment
elsewhere or done anything differently had she known for a fact
that [the doctor] was not an employee of the hospital." Id. at
252, 441 S.E.2d at 570. When, however, a hospital does hold itself out as providing
services, we believe the approach of the Restatement (Second) of
Torts § 429 is consistent with our prior decisions considering
apparent agency. We are also persuaded by the weight of authority
from other jurisdictions. Under this approach, a plaintiff must
prove that (1) the hospital has held itself out as providing
medical services, (2) the plaintiff looked to the hospital rather
than the individual medical provider to perform those services, and
(3) the patient accepted those services in the reasonable belief
that the services were being rendered by the hospital or by its
employees. A hospital may avoid liability by providing meaningful
notice to a patient that care is being provided by an independent
contractor. See, e.g., Cantrell v. Northeast Ga. Med. Ctr., 235
Ga. App. 365, 368, 508 S.E.2d 716, 719-20 (1998) (concluding that
trial court did not err in granting a directed verdict to hospital
when "conspicuous signage was posted and forms signed by the
patient or representative revealed the independent contractor
status of the doctor"), cert. denied, No. 599C0393, 1999 Ga. LEXIS
888 (Ga. Oct. 22, 1999).
Plaintiff has submitted sufficient evidence to meet this test.
The hospital had a Department of Anesthesiology with a Chief of
Anesthesiology and a Medical Director, a fact that a jury could
reasonably find indicated to the public that FMC was providing
anesthesia services to its patients.
(See footnote 4)
Further, defendants chose toprovide those services by contracting with Piedmont to provide
anesthesia services to the hospital on an exclusive basis.
Piedmont doctors served as the hospital's Chief of Anesthesiology
and anesthesia Medical Director. As Dr. McConville put it, his
group "provide[d] the anesthesia services for the operating room at
Forsyth and so there is _ so our group covers the surgical
caseload." Plaintiff and other surgical patients had no choice as
to who would provide anesthesia services for their operations.
Plaintiff's affidavit states that she was unaware that Dr.
McConville and Ms. Crumb were not employees of the hospital. She
explained "I did not select Sheila Crumb nor Dr. Joseph McConville
to provide medical care to me; that in choosing to have my
operation at Forsyth Medical Center, I relied on the fact that
medical care would be provided by employees of Forsyth Medical
Center, excluding my surgeon, Dr. Goco." She further stated:
"[O]ne of the reasons that I had my operation performed at Forsyth
Medical Center was because it was part of Novant Health, a large
healthcare organization . . . ."
In addition, plaintiff pointed to the form on FMC letterhead
that she signed entitled "Consent to Operation and/or Other
Procedures." The form specified: "I therefore authorize my
physician, his or her associates or assistants to perform such
surgical procedures as they, in the exercise of their professional
judgment, deem necessary and advisable." (Emphasis added.) Bycontrast, with respect to anesthesia services, the form stated: "I
authorize the administration of such anesthetics as may be
necessary or advisable by the anesthetist/anesthesiologist
responsible for this service and I request the administration of
such anesthetics." (Emphasis added.) Finally, the form stated: "I
have had sufficient opportunity to discuss my condition and
treatment with my physician and his or her associates and all of my
questions have been answered to my satisfaction." (Emphasis
added.)
This consent form stands in contrast to that provided to the
patient in Hoffman. A jury could decide based on this form that
plaintiff was, through this form, requesting anesthesia services
from FMC and that _ given the distinction made between plaintiff's
personal physician and the unnamed anesthesiologist _ plaintiff was
accepting those services in the reasonable belief that the services
would be provided by the hospital and its employees. See Jennison
v. Providence St. Vincent Med. Ctr., 174 Or. App. 219, 234, 25 P.3d
358, 367 (2001) ("Nowhere did the consent form indicate that the
radiologists were independent contractors. Thus, it is reasonable
to assume that when a patient in [plaintiff's] situation signs a
consent form like the one she signed and later has an x-ray taken,
the patient would believe that it would be a hospital employee who
would ultimately interpret that x-ray.").
Given the current record, we hold that the trial court erred
in granting summary judgment with respect to plaintiff's claims
based on apparent agency with respect to defendant FMH. Withrespect to defendants NHTR and NHI, plaintiff argues only that
"Novant held itself out to the public as owning and/or operating
Forsyth Medical Center and Plaintiff relied upon this." Her
affidavit stated "that the hospital held itself out to me and the
public as being part of Novant." Plaintiff, however, cites no
authority in support of her contention that NHTR and NHI may be
held liable based on apparent agency for the acts of Dr. McConville
and Ms. Crumb. N.C.R. App. P. 28(b)(6) ("Assignments of error . .
. in support of which no reason or argument is stated or authority
cited, will be taken as abandoned."). The record contains no
evidence that NHTR and NHI, as opposed to the hospital, held
themselves out as providing anesthesia services or that they, as
opposed to the hospital, contracted to supply the services.
Accordingly, the trial court properly granted summary judgment as
to NHTR and NHI.
Plaintiff has also argued (1) that the hospital defendants
owed plaintiff a non-delegable duty and (2) that the hospital
defendants are liable, even apart from agency principles, for the
failure to obtain informed consent from plaintiff regarding
anesthesia services. Plaintiff has cited no authority suggesting
that these theories provide a basis for holding NHI or NHTR liable.
With respect to FMH, because of our resolution of this appeal, we
need not address these alternative arguments.
. . . We conclude that defendant's
position is contrary to the discovery rules
established by the Willis and [Simon v. G.D.
Searle & Co., 816 F.2d 397, 401 (8th Cir.),
cert. denied, 484 U.S. 917, 98 L. Ed. 2d 225,
108 S. Ct. 268 (1987)] Courts, and therefore,the trial court erred in denying plaintiffs'
motions to compel production of the accident
report.
Id. at 625-26, 482 S.E.2d at 551-52.
In this case, plaintiff has submitted FMH's policy "for the
reporting of all unexpected events." This policy appears
materially indistinguishable from that in Cook and, therefore,
under Cook, documents generated pursuant to that policy would not
be entitled to protection under Rule 26(b)(3). We are, however,
unable to determine from the current record whether the documents
at issue were generated pursuant to that policy. While none of the
documents are entitled "Quality Assessment Report," as specified in
the policy, certain documents appear to correspond to the reports
and summaries required by the hospital's policy, including
documents numbered 61-68 and 70-81.
We must therefore remand to the trial court for further review
as to these documents. See Willis, 291 N.C. at 36, 229 S.E.2d at
201 (remanding because "[t]he record is insufficient for us to
determine the extent to which" defendant's claims files "may be
subject to the trial preparation immunity"). On remand, defendants
bear the burden of demonstrating that the specified documents were
not prepared pursuant to the hospital policy or were not otherwise
documents "prepared in the ordinary course of business." Id. at
35, 229 S.E.2d at 201.
We are similarly unable to determine on this record whether
documents 92-107 and 154 are entitled to protection under the work
product doctrine or the attorney-client privilege. Because therecord contains no indication who prepared the documents or for
what purpose, we must remand for further review. On remand,
defendants should submit affidavits specifying the author of each
document, the date each document was prepared, the purpose for
which the document was prepared, and the recipients _ if any _ of
each document.
Document 168 is not addressed by defendants in their brief.
This document is a letter by Dr. McConville apparently to his
insurance agency dated 18 October 1999 relating to plaintiff. We
do not know on what basis defendants contend this document is
protected from disclosure or if the trial judge considered whether
this document was subject to production apart from any risk
management documents otherwise protected. Plaintiff has not had
any opportunity to argue why she is entitled to have this document
produced. Plaintiff may even have already received this document
in other discovery. Without expressing any opinion on the issue,
we leave for consideration on remand whether this document should
be produced.
With respect to the remaining documents, we believe that the
trial court did not abuse its discretion in determining that
documents numbered 84-91, 108-53, 155-60, 164, 169-70, and 179-203
were protected either by the attorney-client privilege or the work
product doctrine. Defendants have represented that copies of
documents 161-63 and 165-67 have already been produced to
plaintiff; these are simply copies attached to documents protectedfrom disclosure. As to the documents specified in this paragraph,
we affirm the trial court's order.
B. Statistical Reports
[5] Defendant objected to plaintiff's request for "[a]ll
Statistical Reports for Forsyth Medical Center for infection
control for 1996-2000" on the grounds of relevance. Defendant
points out that "[t]here is no dispute in this case that the
'infection' which the appellant had was an internal one which came
from a leaking esophagus, not from infection of her incision or
other source in the hospital environment." While plaintiff argues,
without any citation to the record, that the reports deal with all
infections at FMC (and not just infections from external sources)
and that the documents "would be clearly admissible under Rule
404(b) of the North Carolina Rules of Evidence to prove a pattern,
practice, plan and modus operandi," plaintiff does not explain to
what issue in this case a pattern, practice, plan, or modus
operandi would be relevant. In the absence of such a showing, we
cannot conclude that the trial court's ruling denying this request
was manifestly unreasonable.
Affirmed in part, reversed in part, and remanded.
Chief Judge MARTIN and Judge BRYANT concur.
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