Sacramento Family Files Medical Malpractice Suit After Infant Deaths, Part 8 of 9

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)


Agency may be either actual or ostensible. (Civ. Code, § 2298; Vallely Investments v. BancAmerica Commercial Corp. (2001) 88 Cal.App.4th 816, 826.) Actual agency exists when the agent is really employed by the principal. (Civ. Code, § 2299.) Ostensible agency “may be implied from the facts of a particular case, and if a principal by his acts has led others to believe that he has conferred authority upon an agent, he cannot be heard to assert, as against third parties who have relied thereon in good faith, that he did not intend to confer such power…” (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 644.)

The doctrine establishing the principles of liability for the acts of an ostensible agent rests on the doctrine of estoppel [citation]. The essential elements are representations by the principal, justifiable reliance thereon by a third party, and change of position or injury resulting from such reliance [citation]. Before recovery can be had against the principal for the acts of an ostensible agent, the person dealing with an agent must do so with belief in the agent’s authority and this belief must be a reasonable one. Such belief must be generated by some act or neglect by the principal sought to be charged and the person relying on the agent’s apparent authority must not be guilty of neglect [citation]. (Hartong v. Partake, Inc. (1968) 266 Cal.App.2d 942, 960.)

Defendant UMH has presented evidence that physicians with staff privileges at UMH are not employees of the hospital, therefore this is not a case of actual agency. The burden of proving ostensible agency is upon the party asserting the relationship. (Oswald Machine & Equipment, Inc. v. Yip (1992) 10 Cal.App.4th 1238, 1247.)

The requirements for finding ostensible agency within the medical context are: (1) the service of the physician is performed on what appears to be the hospital’s premises; (2) a reasonable person in plaintiffs position would believe that the physician’s services are part and parcel of services provided by a hospital; and (3) the hospital does nothing to dispel this belief. (Seneris v. Haas (1955) 45 Cal.2d 811, 831-832; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 166;Stanhope v. L. A. Coll. of Chiropractic (1942) 54 Cal. App. 2d 141, 146;Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1457.) (See Part 9 of 9.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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