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WPI 105.02.03 Hospital Responsibility—Apparent Agency

6 WAPRAC WPI 105.02.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 105.02.03 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part IX. Particularized Standards of Conduct
Chapter 105. Health Care
WPI 105.02.03 Hospital Responsibility—Apparent Agency
A hospital is liable for the conduct of a health care provider who is not a hospital employee if the health care provider was the apparent agent of the hospital. This is established if you find that the hospital, through its own acts or failures to act, has caused the patient to reasonably believe the treatment is being provided by a hospital employee.
In determining whether the relationship between the hospital, health care provider, and patient was such that the health care provider was the apparent agent of the hospital, you may consider, among others, the following factors:
1. Whether the patient sought treatment primarily from the hospital or from the health care provider;
2. Whether it was the hospital that designated the health care provider to perform the services in question;
3. Whether the type of care provided was an integral part of the hospital's operation;
4. Whether the hospital handled the billing for the services of the health care provider;
5. Whether the hospital provided drugs and supplies utilized by the health care provider;
6. The nature and duration of any hospital-health care provider agreements; and
7. Whether the hospital made any representations to the patient, verbally or in writing, regarding their relationship with the health care provider.
The above factors, no one of which is controlling, should be considered by you along with any other evidence bearing on the question.
Use this instruction when there is an issue of the hospital's vicarious liability for conduct of a non-employee health care provider based on sufficient evidence of apparent agency. An appropriate interrogatory will need to be drafted for inclusion in the special verdict form.
In Adamski v. Tacoma General Hospital, 20 Wn.App. 98, 579 P.2d 970 (1978), the plaintiff, alleging negligent treatment by an emergency room physician, brought suit against both the physician and the hospital. The trial court dismissed the hospital on summary judgment, reasoning that the physician was an independent contractor and there was no evidence of negligence by any hospital employee. The Court of Appeals reversed, holding that a hospital may be vicariously liable for the negligent acts of a non-employee physician by operation of the doctrine of “ostensible agency” or “apparent agency.”
Drawing from the Restatement (Second) of Agency § 267 (1958) and cases from other jurisdictions, the Adamski court held that this basis for liability could be established if the hospital through “affirmative misrepresentations” or simply a “holding out” has caused the patient to justifiably rely upon the care and skill of the apparent agent. Various factors to be considered in evaluating such a claim are discussed in the opinion and have been set forth in this instruction. See also, Mohr v. Grantham, 172 Wn.2d 844, 860–62, 262 P.3d (2011); Wilson v. Grant, 162 Wn.App. 731, 743–45, 258 P.3d 687 (2011); D.L.S. v. Maybin, 130 Wn.App. 94, 121 P.3d 1210 (2005), and cases cited therein.
When apparent agency is an issue in the case and this instruction is given, the special verdict form should include the question: “Was Dr. the apparent agent of ?”
[Current as of September 2018.]
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