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Tuesday, September 20, 2011

Nevada Supreme Court Refuses to Apply Nondelegable Duty to Reno Hospital

By Professor Stacey Tovino

Whether a hospital is liable for the negligence of a physician on the hospital's medical staff depends on the application of several tort, agency, and health law doctrines including vicarious liability, actual agency, ostensible agency, corporate responsibility, corporate negligence, the law of nondelegable duties, and the corporate practice of medicine prohibition. In Renown Health, Inc. v. Vanderford, 235 P.3d 614 (Nev. 2010), the Nevada Supreme Court held that Renown Regional Medical Center did not have an absolute nondelegable duty to provide nonnegligent medical care to an emergency room patient through its independent contractor physicians. The Court also held, however, that the Medical Center could be liable for the acts of its independent contractor emergency room physicians under the doctrine of ostensible agency. The Court’s decision makes it slightly more difficult, but not impossible, for an injured patient to recover from a defendant hospital that hosts a negligent emergency room physician.

As a general rule, hospitals are not vicariously liable for the negligent acts of their independent contractor physicians. Some jurisdictions have carved out exceptions to this general rule by identifying certain nondelegable hospital duties, including the duty to provide nonnegligent health care to hospital inpatients, outpatients, and emergency room patients.

In Renown, the Court refused to impose a nondelegable duty on the Medical Center with respect to emergency room patients for four different reasons. First, the Court found that NRS § 439B.410 contemplates a hospital’s delegation of medical care to qualified health care professionals, including independent contractor physicians. Second, the Court referenced Joint Commission Hospital Accreditation Emergency Services Standards I-V, which emphasize the hospital's role as a health care policy setter and administrator, not direct care provider. Third, the Court believed that the imposition of a nondelegable duty on hospitals was a policy decision that was better left to the Nevada Legislature. According to the Court, "The Legislature has heavily regulated hospitals and would have codified a nondelegable duty to emergency room patients if the Legislature had intended such a duty to be imposed on hospitals."

Finally, the Court concluded that the case law cited by the plaintiff in support of a nondelegable duty involved issues that should have been classified as ostensible agency issues, not nondelegable duty issues. In the typical ostensible agency case involving a defendant hospital, a patient presents to the hospital without an attending physician, the hospital selects a physician for the patient, and the Court holds that it is reasonable for the patient to assume that the physician is an agent of the hospital. Because the plaintiff in the instant case did not choose his own physician but instead was subject to the physician selected for him by the Medical Center, the Court held that the Medical Center could be liable under the doctrine of ostensible agency if the plaintiff reasonably believed that the physician was an agent of the Medical Center.