Personal Injury Lawyer Blog
The following blog entry is written from a defendant’s position during the early stages of litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)
Dr. Cruz is Not the Ostensible Agent of UMC.
Pursuant to Mejia v. Community Hospital (2002) 99 Cal.App.4th 1448, in order to establish ostensible agency plaintiffs must prove all of the following three elements: (1) the plaintiff believed that the physician was an agent of the hospital, and this belief was reasonable; (2) plaintiff’s belief must be generated by some act or neglect of UMC; and (3) the plaintiff must not be guilty of negligence. (Mejia, supra 99 Cal.App.4th 1456 -1457.) Herein, plaintiffs cannot establish these elements because the Conditions of Services form, signed by the patient and dated November 3, 2003, prior to the subject surgery by Dr. Cruz, clearly states under paragraph 4 that all physicians and surgeons furnishing services to the patient … are independent contractors with the patient and are not employees or agents of the hospital.
Plaintiff was Given Actual Notice of the Independent Contractor Relationship between Physicians and UMC.
Ostensible agency may not be inferred when the hospital gave the patient actual notice of the true relationship between the hospital and the physician, and in the instant case, such notice was given to plaintiff, who acknowledged his signature on the Conditions of Admissions form dated November 3, 2003, signed by the plaintiff within 24 hours of his presentation to UMC, and a full day before the subject surgery by Dr. Cruz. Since plaintiff was provided with actual, written notice of the relationship between UMC and physicians, there can be no finding of an ostensible agency relationship between Dr. Cruz and UMC.
Plaintiff argues that he was not given notice of the status of the relationship at the time of his admission, apparently persuade the court that the timing of the notice renders the notice invalid. However, this is a distinction without a difference. Nothing in Mejia or otherwise requires the hospital to shove such documents into plaintiff’s hands as he is being wheeled into the emergency room. Mejia merely requires actual notice. This actual notice was signed by plaintiff on November 3, 2003, the day before his surgery with Dr. Cruz, and such notice is sufficient to satisfy the Mejia requirements. (See Part 4 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.