CHAPTER 33: LIABILITY TO THIRD PARTIES AND TERMINATION 551
Dr. Joyant’s name. The college and the doctor had a relationship where, in exchange for the doctor paying no rent or janitorial
costs, he would teach at the college and do work on the college’s patients. (
Id.
at pp. 144-145, 128 P.2d 705.) He would however,
charge and collect the fees for individuals he treated, whether referred by the college or not. He did not share any of his fees with
the college. The agreement between Dr. Joyant and the college was oral. Plaintiff testified that he was carried into the X-ray lab
being carried from room to room suffering excruciating pain, should have inquired whether the individual doctors who examined
him were employees of the college or were independent contractors…. The evidence produced on this issue is sufficient to support
the jury’s implied finding that Dr. Joyant was the ostensible agent of [defendant] college.” (
Stanhope, supra,
54 Cal.App.2d at p.
146, 128 P.2d 705.)
Stanhope
was subsequently relied on by the court in
Seneris v. Haas
(1955) 45 Cal.2d 811, 291 P.2d 915 (
Seneris
). There,
915.)
Later, in
Quintal, supra,
62 Cal.2d 154, 41 Cal.Rptr. 577, 397 P.2d 161, the court again dealt with the relationship of an
161.)
While both
Seneris
and
Quintal
deal with the issue of ostensible agency at a different procedural stage than
Stanhope,
there is
nonetheless consistency as to requirements for finding ostensible agency within the medical context: (1) the service of the
physician is performed on what appears to be the hospital’s premises; (2) a reasonable person in plaintiff’s 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
[31] These four cases demonstrate that a plaintiff seeking to prove that a physician is an ostensible agent of a hospital is not
required to show that the patient (1) actually believed that the doctors were employed by the hospital, or (2) changed her position
or otherwise relied to her detriment based upon her belief that the doctors were agents of the hospital.
As acknowledged in
Mejia,
the issue of “ostensible agency” is extensively discussed in
Jennison v. Providence St. Vincent Medical
Center
(2001) 174 Or.App 219, 25 P.3d 358. There, plaintiff was admitted to the emergency room with severe abdominal pain.
is objectively reasonable for the patient to believe that physician is an employee of the hospital.” (
Jennison v. Providence St.
Vincent Medical Center, supra,
25 P.3d at p. 367.) In so holding, the court emphasized that the hospital was required by law to
provide radiology services and that said services were integral to the overall medical services provided by the hospital. (
Ibid.
) The
court further acknowledged that, by holding itself out as providing radiological services to the community, the hospital was
estopped from claiming no responsibility for the negligent conduct of their independent contractor. (
Ibid.
)
“By asserting that there was no substantial evidence to support the jury’s verdict for respondent,
appellant is in fact claiming that he
proved [ostensible agency] as a matter of law, and such is not established unless the only reasonable hypothesis is that
[ostensible agency] existed.
[Citations.]” (
Horn v. Oh, supra,
at p. 1099, 195 Cal.Rptr. 720, italics added.)
[33] The issue of ostensible agency does not deal with whether an individual is in fact an actual employee, but rather, what the
alleged
“principal by his acts has led others to believe.”
(
Tomerlin v. Canadian Indemnity Co., supra,
61 Cal.2d at p. 644, 39
FN26. The fact that the courts’ discussion of this issue in
Seneris, Quintal,
and
Mejia
flow from the granting of nonsuit motions, is
therefore of no consequence relative to our present review.
In 1990, the Hospital applied to the State of California to establish its CPSP.FN27 McCloudy set up the CPSP at the Hospital. The
FN27. McCloudy testified that the Hospital did not provide obstetric services through CPSP. She testified that the Hospital provided
“the psychosocial, the educational, the nutritional, and provided a location where physicians, independent physicians came in and
provided the obstetrical care….” Her description of the legal relationship may well be correct. However, when looking at the issue of
ostensible agency, we do not look to the actual legal relationship between the various parties, but rather whether the Hospital held
the doctors out to members of the public as Hospital employees.
Shahan did not have her own physician. She went to the emergency room at the Hospital. While there, she was told she was
pregnant. Personnel at the emergency room referred her to Drs. Gubin and Ogata. Emergency room personnel gave her a piece of
paper with the address of the outpatient clinic. There was no discussion at that time about the affiliation between the Hospital and
Drs. Gubin and Ogata. About one week later, she telephoned Dr. Gubin’s office. The receptionist answered, “Desert Outpatient
Clinic. Dr[s]. Gubin and Ogata’s clinic.” The clinic is named the “Desert Hospital Outpatient Maternity Services Clinic.” It was
services provider,” subject to the legal requirements that it provide certain obstetrical services. (See Welf. & Inst.Code, § 14134.5;
Cal.Code Regs., tit. 22, §§ 51179–51179.8, 51348–51348.2.) The outpatient clinic was integral to the Hospital as the place where
obstetrical services to indigent patients were performed. Prior to the setting up of the clinic, obstetrical care was delivered on an ad
hoc basis in the emergency room.
At Shahan’s first appointment she signed a “patient rights and responsibilities” document, which sets forth her rights to: “1. Be
[34] Here, the Hospital held out the clinic and the personnel in the clinic as part of the Hospital. Furthermore, it was objectively
reasonable for Shahan to believe that Drs. Gubin and Ogata were employees of the Hospital. The clinic was located across the
street from the Hospital. It used the same name as the Hospital and labeled itself as an outpatient clinic. Numerous professionals
554 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
at the clinic were employees of the Hospital. Both Cribbs and Sterling indicated to Shahan that they were employees of the
contacts with the physicians were at the Hospital-run clinic. Most, if not all, of the physician contacts occurred in conjunction with
the provision of other services by either Sterling or Cribbs. The entire appearance created by the Hospital and those associated
with it, was that the Hospital was the provider of the obstetrical care to Shahan. There is nothing in this record to suggest
otherwise. Additionally, there is no evidence that plaintiff should have known that Drs. Gubin and Ogata were not the agents of the
Hospital.
We therefore find that substantial evidence does not exist to support the trial court’s implied finding that the physicians were not
ostensible agents of the Hospital.
4.
The Court’s Findings That the Physicians, the Hospital, and Sterling Were Not Negligent.
Amanda contends that the Hospital and Sterling were negligent as a matter of law. In particular, she argues that the Hospital and
Sterling violated duties to: perform certain regulatory obligations applicable to CPSP; inform Shahan of the risks disclosed in the
ultrasound results and advise her of the option of terminating the pregnancy; refer Shahan to a specialist or ensure that she was so
referred; and schedule and ensure completion of a follow-up ultrasound after March 21, 1994.
[35] Amanda argues that the Hospital and Sterling failed to comply with certain obligations created by statutes and regulations
governing hospitals, physicians, and CPSP. (See, e.g., Welf. & Inst.Code, § 14134.5; former Health & Saf.Code, § 1795.27
[repealed Stats.1995, ch. 415, § 104, recodified as Health & Saf.Code, § 123148, Stats.1995, ch. 415 § 8]; Cal.Code Regs., tit. 22,
§§ 51348.2, 70707.) In particular, these regulations provide the patient of a CPSP with the right “to review her medical treatment
and record with her physician or practitioner, to be provided explanations about tests and clinic procedures, … and to participate in
the ultrasound reports or interpret them for her. Although Shahan was not informed of the results of the May 9 ultrasound, the
report of that ultrasound was not received by the clinic until after Amanda was born. Kidwell, an expert with respect to CPSP
CHAPTER 33: LIABILITY TO THIRD PARTIES AND TERMINATION 555
compliance obligations, testified that Sterling and the Hospital’s CPSP staff complied with all regulatory requirements. Dr. Porto
further testified that the CPSP services provided to Shahan during her pregnancy were within the applicable standard of care.
results.
[37] Amanda’s argument that the Hospital and Sterling were negligent for failing to refer Shahan to a specialist fails for the same
reason. Sterling, Kidwell, Dr. Porto, and two of plaintiff’s experts-Dr. Robboy and Mary Dee Cutler-testified that the responsibility
for referring a patient to a specialist belongs to the physician, not the nurse or the CPSP staff. No physician ever asked Sterling to
coordinate a referral to a specialist, and there is no evidence that a physician asked any other Hospital employee to refer Shahan
concerned about a problem with the fetus if the purpose of the ultrasound was to resolve a size versus dates question. According
to Sterling, the intervening receipt of the March 21 ultrasound report and new measurements taken at the March 29 visit would
have provided the treating physician with the information Dr. Ogata sought regarding the gestational age. The repeat ultrasound,
Sterling explained, was no longer needed or ordered by the physician. Dr. Gubin confirmed this explanation. There is thus
sufficient evidence to support an implied finding that the Hospital and Sterling were not negligent in failing to obtain an ultrasound
determine whether any follow-up or further investigation is necessary; referring a patient to have an ultrasound without the advice,
consent, approval, and direction of the physician is beyond the expertise of the CPSP case coordinator. Although the March 21
ultrasound report includes a recommendation from the radiologist
to Dr. Ogata
to obtain a follow-up ultrasound in four to six weeks,
there is nothing in the record that indicates that any physician ever informed Sterling or any other Hospital employee of that
recommendation, altered the original diagnosis for the pregnancy, informed any Hospital employee of either the March 21
[39] We turn now to the issue of the physicians’ alleged negligence. The trial court concluded: “Based upon the evidence
presented at trial, an elective abortion is not recommended as a treatment alternative after the twentieth (20th) week of gestation
(unless the health of the mother is at substantial risk). Failing to offer an abortion as a treatment alternative cannot fall below the
standard of care if, as here, the evidence showed that the fetus was beyond the twenty (20) week gestation and the mother’s
health was not at substantial risk. The evidence showed that the treating physician would not have recommended an elective
chance that this baby would be born completely normal and this problem would resolve itself.” There could not be a definitive
diagnosis at that time. Giving Shahan the option of terminating the pregnancy at that time without a definitive diagnosis, Dr. Porto
testified, would have been below the physician’s standard of care. Specifically, Dr. Gubin and Dr. Ogata each acted consistent with
the standard of care in treating Shahan.
With respect to the May 9 ultrasound, the report of that ultrasound was not received by the clinic until after Amanda was born.
gestational age.
While the court’s express finding regarding negligence is supported by substantial evidence, the court did not address the
physician’s duty to appropriately diagnose the underlying condition and provide the patient with the information required to make
an informed treatment decision. On appeal, as at trial, Amanda contends that Drs. Gubin and Ogata were negligent in failing to
inform Shahan of the fetus’s condition. Amanda argues that in failing to inform Shahan, Shahan was deprived of the ability to make
855 P.2d 375, italics added.)
The scope of the physicians’ duty under this doctrine in the factual context presented here was addressed by expert witnesses. Dr.
Sollman testified that it is the physician’s responsibility to order the ultrasound, obtain the ultrasound film, evaluate the films and to
inform the patient of the results. He stated that it is important that a patient be told and made aware of the fact of the fetus’s
condition and that problems be discussed. Dr. Robboy testified that Shahan had a right to be fully advised of the abnormalities
March 29. Dr. Gubin testified that he believed he saw Shahan on those dates. Shahan, however, testified that she met with Dr.
Ogata on those dates. Sterling was unable to find anything in Shahan’s medical chart indicating that Shahan saw Dr. Gubin on
March 29. Based on such evidence, the court could have found that Dr. Gubin never saw Shahan after January 25 and that he had
no occasion to review the March 21 ultrasound. Nor is there any evidence that Dr. Gubin discussed any ultrasound results with
Shahan. Additionally, there is no evidence that Dr. Gubin was aware of the May 9 ultrasound results until after Amanda’s birth.
[42] Dr. Ogata did review the March 21 ultrasound report and discussed it with Shahan. He told her that the head of the fetus
FN28. While the record contains substantial evidence to support findings of negligence on the part of the physicians, it also
contains substantial evidence in support of the trial court’s implied findings that the physicians were not negligent.
Case 33.3
218 Ariz. 121, 180 P.3d 986
Court of Appeals of Arizona,Division 2, Department A.
1. Appellant Catherine Warner appeals from the trial court’s dismissal of her negligence claims against appellees
David Hoggatt and Barbara Hoggatt (Hoggatt), Robert Wilson and Dawn Wilson (Wilson), and Sierra Pest/Termite
FN1. Although the spouses of David Hoggatt and Robert Wilson were named as parties, for convenience, we
refer to David and Robert as individuals.
Factual and Procedural Background
2. Appellee Southwest Desert Images, LLC (SDI) was hired by Warner’s employer, Aegis Communications (Aegis),
to perform landscaping and weed control. On September 29, 2003, SDI employee Hoggatt began spraying an
3. Prior to and during the evacuation, Warner began having difficulty breathing, was coughing violently, and felt
burning in her eyes, nose, and throat. As she exited the building, Warner began to feel faint and felt “extreme chest
4. Warner testified she continued to have angina and palpitations that night. She visited her doctor two days later.
He concluded she had suffered a heart attack the day of the evacuation. Warner continued to have a “scratchy throat
5. Warner sued SDI for negligence in September 2004, later amending her complaint to include as defendants
Hoggatt, Wilson, and Sierra Pest, Wilson’s employer. She alleged SDI was a “branch office” of Sierra Pest and
FN2.Sections 32-2301 through 32-2329, A.R.S., govern Arizona’s Structural Pest Control Commission
CHAPTER 33: LIABILITY TO THIRD PARTIES AND TERMINATION 559
(SPCC) and the certification, registration, licensure, and regulation of persons or businesses engaged in the
6. The trial court dismissed Wilson and Sierra Pest from the action prior to trial because Warner had not filed an
7. The jury found SDI to be completely responsible for the injuries Warner suffered by inhaling the herbicide. The
jury attributed no responsibility to Warner and her doctor, who had been designated as a nonparty at fault. It awarded
FN3. SDI had offered to confess judgment in favor of Warner in the amount of $30,000; Sierra Pest had
offered $1,501; and Hoggatt and Wilson had each offered Warner $1.
Discussion
Hoggatt Dismissal
FN4. Although the trial court referred to its ruling as a directed verdict, the 1996 amendments to Rule 50, Ariz.
R. Civ. P., replaced that term with “judgment as a matter of law” (JMOL). We use the terms interchangeably,
as “[t]he tests for granting a directed verdict and a JMOL motion are the same.”
Murcott v. Best Western Int’l,
Inc.,
198 Ariz. 349, ¶ 36, 9 P.3d 1088, 1095 (App.2000).
[3][4] ¶ 9. We agree with Warner that “[t]here [wa]s no legal basis for the court’s decision to dismiss Hoggatt from the
¶ 11. That the error does not warrant a new trial, however, does not mean it was not prejudicial to Warner. She has a
FN5. Hoggatt’s reliance on
Rager v. Superior Coach Sales & Service of Arizona,
110 Ariz. 188, 516 P.2d 324
(1973), is misplaced. There, our supreme court stated: “While as between joint tort-feasors the recovery of a
judgment against one does not bar an action against another, the satisfaction of the judgment obtained
12. Wilson and Sierra Pest filed a motion to dismiss Warner’s claims against them, asserting that, because Wilson
is a licensed professional, expert testimony was required to establish Wilson had breached the relevant standard of
care. Thus, Wilson and *993 Sierra Pest argued, Warner was required by A.R.S. § 12-2602(B) to file a “preliminary
13. Wilson and Sierra Pest subsequently moved the trial court to order Warner to file a preliminary expert opinion
affidavit. Although Warner had yet to respond to the motion, the court granted it. Eight days later the court entered
that order and because Warner had not yet filed an expert affidavit, Wilson and Sierra Pest renewed their motion to
dismiss based on § 12-2602. The court granted the motion and dismissed the complaint against Wilson and Sierra
Pest.FN6
FN6. In its initial ruling and minute entry, the trial court granted the motion to dismiss “as to vicarious liability,”
without discussing the motion to dismiss as it pertained to Warner’s claim against Wilson and Sierra Pest for
negligent supervision and training of Hoggatt. Later, however, the court stated it had dismissed Wilson and
15. Before we begin our discussion of this issue, we note that the parties devote a considerable portion of their
CHAPTER 33: LIABILITY TO THIRD PARTIES AND TERMINATION 561
briefs to whether the evidence or the law support Warner’s theories of Wilson’s and Sierra Pest’s liability. Those
issues are not before us, nor were they before the trial court; the court dismissed the claims solely because Warner
had failed to file an expert witness affidavit when ordered to do so, not because she had failed to state a claim.
violation of the applicable standard of care resulting in liability,” and “[t]he manner in which the licensed professional’s
acts, errors or omissions caused or contributed to the damages or other relief sought by the claimant.” § 12-2602(B).
Section 12-2601(1), A.R.S., defines a “[c]laim” as a legal cause of action asserted against a licensed professional,
where “[e]xpert*994 testimony is necessary to prove the licensed professional’s standard of care or liability for the
claim,” and where the cause of action “is based on the licensed professional’s alleged breach of contract, negligence,
18. Moreover, in a case involving a licensed professional’s vicarious liability, there is no standard of care applicable
to the professional because liability is based only on the professional’s relationship with the party who committed the
underlying tort. Therefore, in a vicarious liability claim against a licensed professional, there is no need for an expert
opinion affidavit, and the trial court erred by requiring Warner to provide one for her claims resting on vicarious
liability.FN7
FN7. Warner also asserts that Arizona’s statutory and regulatory scheme governing the business of structural
19. Relevant to both her direct and vicarious liability claims against Wilson and Sierra Pest, Warner next argues
that, even if the trial court had not erred by ordering Warner to submit expert opinion affidavits, erred in dismissing her