WPI 105.02.01 Hospital Responsibility—Agency

Use this instruction when a hospital corporation is a defendant. Use bracketed material as applicable.

Use the bracketed language in the first paragraph only if there is an issue of corporate negligence by the hospital, in addition to a claim of vicarious liability for negligence of a hospital's officers, employees, or agents.

When there is an issue as to actual agency, use the appropriate instructions from WPI Chapter 50 (Agency and Partnership—Torts).

When there is an issue of apparent agency, use WPI 105.02.03 (Negligence-Hospital-Apparent Agency) with this instruction. In addition, include “apparent agents” as individuals through whom the hospital corporation can act, and “apparent agent” as an individual whose act or omission is the act or omission of the hospital corporation in this instruction.

If an issue of corporate negligence exists, also use WPI 105.02.02 (Hospital Responsibility—Corporate Negligence).

RCW 4.24.290 and RCW 7.70.020 include hospitals in the definition of health care provider. See the Comment to WPI 105.01 (Negligence—General Health Care Provider).

The bracketed phrase “having an independent duty of care to its patients” is included in the first sentence of the instruction in view of the many cases stating that a hospital has an independent duty of care to its patients. See Pedroza v. Bryant, 101 Wn.2d 226, 677 P.2d 166 (1984); Osborn v. Public Hospital Dist. I, Grant County, 80 Wn.2d 201, 492 P.2d 1025 (1972); Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973 (1967); and Byerly v. Madsen, 41 Wn.App. 495, 704 P.2d 1236 (1985).

In Jaramillo v. Morris, 50 Wn.App. 822, 750 P.2d 1301 (1988), the trial court erred in applying the Consumer Protection Act to a hospital's conduct, because the claim against the hospital was based upon its alleged negligence in not determining a podiatrist's qualifications to perform ankle surgery, rather than the entrepreneurial aspects of the hospital's business. In Burnet v. Spokane Ambulance, 54 Wn.App. 162, 772 P.2d 1027 (1989), the court held that a claim based upon a physician's or hospital's negligence does not relate to the entrepreneurial aspects of their respective businesses and thus falls outside the scope of the Consumer Protection Act. Burnet also holds that a hospital is not vicariously liable for the treatment of a patient by a physician, when the physician has staff privileges at the hospital, but is not an employee of the hospital.

The court held in Marthaller v. King County Hosp. Dist. No. 2, 94 Wn.App. 911, 973 P.2d 1098 (1999), that paramedics employed by a county hospital were statutorily immune from liability, under RCW 18.71.210, for alleged negligence in performing an endotracheal intubation while rendering emergency medical services to a gunshot victim in the absence of evidence that the paramedics failed to act in good faith.

In Silves v. King, 93 Wn.App. 873, 970 P.2d 790 (1999), the court held that, absent a clear error or mistake in an emergency room physician's prescription of a drug, a hospital pharmacist had no duty to warn the patient of potential drug interactions and contradictions or to consult with the prescribing physician or question the physician's judgment in prescribing the drug. The Silves court further held that the hospital's discharge nurse had no independent duty to ascertain, consult with the prescribing physician about, or warn the patient of, the potential harmful risks of a drug prescribed by the emergency room physician. Nor did the discharge nurse have an independent legal duty to undertake a personal review of written warnings and instructions with a discharged patient, especially when there was no indication the written warnings would not effectively advise the patient.

In Zenkina v. Sisters of Providence in Wash., Inc., 83 Wn.App. 556, 922 P.2d 171 (1996), the court held that a hospital and its emergency room personnel owed no duty to prevent relatives of emergency room patients from fainting or to warn them of the risk that they might faint at the sight of blood or at the sight of some medical procedure, such as suturing or the giving of an injection.

For a discussion of agency and respondeat superior as they relate to hospitals, see Adamski v. Tacoma Gen. Hosp., 20 Wn.App. 98, 579 P.2d 970 (1978), and Adcox v. Children's Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 864 P.2d 921 (1993).