TAWNI MCCROSKY, INDIVIDUALLY AND AS THE NATURAL PARENT OF LYAM MCCROSKY, A MINOR CHILD, Appellant,
CARSON TAHOE REGIONAL MEDICAL CENTER, A NEVADA BUSINESS ENTITY, Respondent.
from a district court judgment after jury verdict in a
medical malpractice action. First Judicial District Court,
Carson City; James Todd Russell, Judge.
& 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.
HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
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.
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
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
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. ___
(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.
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
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.
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.
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.
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.
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.