The Oregon Court of Appeals clarified when a patient may sue a clinic or hospital alleging medical malpractice of a physician. In Eads v. Borman and Willamette Spine Center, Mr. Eads became partially paralyzed after a series of back surgeries by Dr. Timothy Borman. Mr. Eads sued Dr. Borman and also sued Salem's Willamette Spine Center, LLC, because he believed Dr. Borman was acting on behalf of the clinic. Oregon's Court of Appeals held that Mr. Eads's "subjective belief" was not enough without facts of certain conduct or control by Willamette Spine Center. It ruled that Willamette Spine Center was not responsible for the conduct of Dr. Borman. The court did not say whether Dr. Borman's medical practice was excellent or poor or had anything to do with Mr. Eads's injury.
Generally, when someone is acting on behalf of another and subject to his control, then you can sue both (1) the "agent" or employee and (2) the "principal." The Court held that there was no evidence that Willamette Spine Center controlled the work of Dr. Borman. It merely owned the building, leased the space, provided signage and a logo. In fact, Dr. Borman did not even pay rent to Willamette Spine Center. He paid one of the tenants in an office-sharing arrangement.
Although one of the owners of Willamette Spine Center referred Mr. Eads to Dr. Borman, the court found that the referral of a patient between doctors had nothing to do with the corporate landlord. It could be different if Dr. Borman were REQUIRED to accept any referrals from the clinic or from, say, a government agency. But Dr. Borman was free to accept or reject the patient.
The Oregon court also rejected the claim that Willamette Spine Center, in effect, tricked Mr. Eads into thinking Dr. Borman was acting on behalf of the clinic. "Apparent agency" exists only when the apparent principal acts to "hold out" the person as its agent and the injured party relies on that act when hiring the agent. Adding Dr. Borman's name to the building directory was not enough, held the court. Although the Willamette Spine Center name and logo appeared on Dr. Borman's business card, the court noted that was an act of Dr. Borman, not an act of Willamette Spine Center. Dr. Borman's use of the building's name and logo did not make Willamette Spine Center responsible for Dr. Borman's work.
According to this case, a clinic or hospital or other entity is responsible for physician malpractice when: (1) it employs the doctor, (2) it requires the doctor to accept patients, (3) it has the right to control the work of the doctor, or (4) it acts to make patients think that the doctor is the employee or agent of the clinic.
Jeff Merrick, Oregon Trial Attorney
503-665-4234
The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
