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Alan S. Bean Gideon & Wiseman

When the Tennessee Supreme Court in May reversed two appeals court decisions regarding the notice given patients that physicians in hospitals may be independent contractors, it left hospitals with a big question: Just what is sufficient and meaningful notice that doctors and other providers may not be hospital employees?

What hospitals do know is that the notice used in the past may not be good enough anymore.

“We are currently working with our hospital clients on a method to more effectively notify patients of the hospital–independent contractor physician relationship. That method might include a separate or more conspicuous form, a more thorough explanation of that relationship to the patient or patient representative, and clearer proof that the patient or patient representative received and understood the notice,” Alan S. Bean, an attorney with the Nashville-based law firm Gideon & Wiseman, explained. Bean helped represent River Park Hospital in the Boren v. Weeks case, one of the two cases that has called the notice provisions into question.

In the Boren case, Marvin Boren filed suit on behalf of his deceased wife against River Park Hospital in McMinnville claiming that the hospital was vicariously liable for the negligence of Mark Weeks, MD, an emergency-room physician with staff privileges. At the appeals level, the hospital was granted summary judgment.

The same thing happened with Dewald v. HCA Health Services. Amanda Lynn Dewald filed suit against StoneCrest Medical Center in Smyrna for an incorrect diagnosis by an independent contractor radiologist, Adrian Lamballe, MD. HCA was granted summary judgment at the appeals level.

“We said there’s no genuine issue of material fact that you can hold the hospitals vicariously libel through this alleged agency relationship for the actions of these doctors who are not hospital employees,” Bean said.

But the Tennessee Supreme Court saw things differently and overturned both grants of summary judgment. Studying the cases simultaneously, the high court held that the notice given the patients about the hospital-contractor relationship wasn’t “meaningful.” In Boren, the court held that “under some circumstances, such as the case of a medical emergency … written notice may not suffice if the patient had an inadequate opportunity to make an informed choice.”

The consent form used by River Park Hospital included a disclaimer which “disavowed the existence of any employment or agency relationship with the emergency department physicians.” The phrase was included in a three-page document reviewed upon admittance to the emergency department, but no member of the hospital staff called the disclaimer to the attention of the patient or a family member.

At StoneCrest, the admission form included the following language: “I understand those physicians providing medical services are not agents or employees of the hospital. This includes but is not limited to the emergency department physicians and physician assistants, the anesthesiologist, the radiologists …”
Bean acknowledged that the challenge for hospitals is that patients and their family members or friends usually aren’t paying attention to the myriad of forms they are asked to review and sign. Especially when people are in an emergency room, they are usually scared and concerned, and paperwork takes a back seat.
“That is a real problem, and it’s very frustrating because we have to disavow this relationship, but, in a sense, it’s almost impossible to do it under the circumstances,” he said.

“Probably what needs to be done is that there needs to be a separate form that only discusses this relationship, and it probably wouldn’t be a bad idea – although we have to take more time away from the actual treating of the patient to do this – to actually sit down and explain to the patients and/or their representatives the nature of this relationship.”

Bean added, “Unfortunately, while the Tennessee Supreme Court has indicated that the consent forms in those two cases did not provide sufficient notice to patients that independent contractor physicians are not hospital employees, the court did not provide hospitals with much guidance on how to meet the ‘sufficient notice’ standard.”

Both cases now go back to the trial level. They may proceed to trial or be resolved in another fashion.

“It is because of these types of opinions that plaintiff’s attorneys have said, ‘Well, I should go ahead and name the hospital, because if I can show that the patient or the representative was not given meaningful, sufficient notice, then I can also bring the hospital in under the physician’s treatment, even though the physician is an independent contractor,’ ” Bean said. He noted that it’s become “very commonplace” for plaintiffs to name the hospital in a suit, even if there are no allegations of negligence against any members of the hospital staff.

In a Health Law Update published by the law firm of Bass, Berry & Sims, attorneys concluded that with these two cases the high court “laid the groundwork to expand the scope of liability for Tennessee hospitals under the doctrine of apparent agency. While the ramifications of these cases are still unknown, trial courts will undoubtedly grapple with these issues in the months to come.”



August 2008

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