McCrosky v. Carson Tahoe Regional Medical Center

         Appeal from a district court judgment after jury verdict in a medical malpractice action. First Judicial District Court, Carson City; James Todd Russell, Judge.

          Durney & Brennan, Ltd., and Peter D. Durney and Allasia L. Brennan, Reno, for Appellant.

          Carroll, Kelly, Trotter, Franzen, McKenna & Peabody and John C. Kelly, Robert C. McBride, and Chelsea R. Hueth, Las Vegas, for Respondent.

          Matthew L. Sharp, Ltd., and Matthew L. Sharp, Reno, for Amicus Curiae Nevada Justice Association.

          BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.

          OPINION

          Stiglich, J.

         This medical malpractice suit requires us to reconsider under what circumstances a hospital can be vicariously liable for the alleged negligence of a doctor who works at the hospital as an independent contractor. The district court held that the hospital could not be liable, particularly when the doctor independently settled with the plaintiff and when the plaintiff signed forms stating that all doctors at the hospital are independent contractors. We disagree because Nevada law recognizes vicarious liability under these circumstances so long as an ostensible agency relationship existed between the hospital and the doctor. We reverse and remand for a jury to determine whether such an ostensible agency relationship existed under the facts of this case.

         BACKGROUND

         In September 2012, Tawni McCrosky learned from her primary family physician that she was pregnant. Her physician advised her to go to the Maternal Obstetrical Management (MOM's) clinic, a prenatal care clinic operated by Carson Tahoe Regional Medical Center (CTRMC). The MOM's clinic is staffed by nurses and physicians who volunteer their time, including Dr. Hayes, the obstetrician who would later deliver McCrosky's child.

         Every time McCrosky went to the MOM's clinic, she signed a "Conditions of Admissions (COA)." The COA was a two-page document listing twelve conditions. The sixth condition stated;

All physicians and surgeons furnishing healthcare services to me/the patient, including the radiologist, pathologist, anesthesiologist, emergency room physicians, hospitalists etc., are independent contractors and are NOT employees or agents of the hospital. I am advised that I will receive separate bills for these services. ___ (Initial)

(Emphasis in the original.) This was the only condition on the COA that required the patient's initials. McCrosky initialed in the indicated space and signed her full name at the end of each form. She claims that she has no recollection of reading or signing these forms on five separate occasions. She alleges that they were handed to her without explanation.

         On April 2, 2012, McCrosky preregistered with CTRMC to deliver her infant at the hospital. It is standard practice for expecting mothers at the MOM's clinic to preregister with CTRMC within three months of their expected delivery date. When she preregistered, McCrosky signed and initialed a COA identical to the five COAs she had previously signed at the MOM's clinic.

         Twenty-two days later, McCrosky went into labor. When she arrived at CTRMC to deliver, Dr. Hayes was the obstetrician on call. Although Dr. Hayes volunteers at the MOM's clinic, she had never met McCrosky, and there is no indication that McCrosky selected Dr. Hayes to deliver her child. McCrosky did not sign a COA at this time.

         The delivery did not go as planned. It resulted in McCrosky's child suffering permanent, debilitating injuries. McCrosky sued Dr. Hayes and CTRMC, alleging that they provided negligent care which proximately caused her son's injuries. McCrosky settled with Dr. Hayes prior to trial. In their settlement, McCrosky and Dr. Hayes signed a release which explicitly reserved "[a] 11 rights against the hospital predicated upon the actions or omissions of Dr. Hayes."

         McCrosky's suit against CTRMC was predicated on two theories. First was that CTRMC was directly negligent in its treatment. A jury rejected this claim after an eleven-day trial.

         Second, McCrosky sought to hold CTRMC vicariously liable for Dr. Hayes's alleged negligence. McCrosky concedes that Dr. Hayes is an independent contractor rather than an employee of CTRMC; she is paid through Carson Medical Group to provide on-call obstetrical service at CTRMC. Nonetheless, McCrosky argues that a reasonable patient in her position would have understood Dr. Hayes to be a CTRMC employee, making Dr. Hayes an ostensible agent of the hospital and exposing it to vicarious liability for Dr. Hayes's conduct.

         CTRMC moved for partial summary judgment on the issue of vicarious liability. The district court granted that motion, finding that (1) NRS 41A.045 abrogates vicarious liability for providers of health care, (2) McCrosky's settlement with Dr. Hayes precluded additional recovery from CTRMC for Dr. ...