E-Alert Case Updates

Obstetrician was apparent agent of hospital when patient arrived with fetal demise

Thorton v Maryland General Hospital
not reported in F. Supp. (2015)
by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

On November 4, 2010, Cierra Randolph presented to the Obstetrics and Gynecology Department at Maryland General Hospital at 37 weeks for the onset of labor. During the preliminary exam, the labor and delivery nurse did not find a fetal heartbeat, and immediately contacted the attending obstetrician, Dana Lee, M.D. Dr. Lee admitted Randolph and diagnosed fetal demise and a placental abruption, and ordered additional testing. After delivering the stillborn infant, Randolph began to hemorrhage resulting in significant blood loss. The hospital staff had difficulty establishing and maintaining an IV, and Randolph's condition deteriorated until she died on November 7, 2010.

The wrongful death beneficiaries brought a lawsuit against Maryland General Hospital ("MGH"), Dr. Lee, and various other staff members, which was removed to the United States District Court for the District of Maryland. The primary allegations of negligence related to Dr. Lee. MGH moved for partial summary judgment, arguing that there was no vicarious liability for Dr. Lee, because Dr. Lee was neither the actual nor apparent agent of the hospital. MGH based on Dr. Lee’s undisputed status as an independent contractor, not an employee of the hospital..

Judge William Nickerson recognized that Plaintiffs could not change their position on Dr. Lee's agency after the numerous judicial admissions to the Court. Nevertheless, the Court noted that even if Plaintiff had not made the representations, the contract between Dr. Lee's actual employer MCHC and MGH expressly rejected agency, and Maryland law would not hold Dr. Lee as an employee of MGH. The Court cited to the factors considered by the Maryland Courts, and found they did not support actual agency.

1. the physician's work was usually done without supervision,
2. her work requires an extremely high degree of skill,
3. she was under no obligation to admit her patients to that hospital,
4. she was not paid by the hospital, nor were her benefits paid by the hospital,
5. while the hospital imposed certain standards of professional care and behavior on those with hospital privileges, it did not direct the manner in which she provided care.

As to the apparent agency, the Court noted that the argument was based primarily on the lack of evidence, but this was due in large part to MGH's continued failure to identify a 30(b)(6) corporate designee for deposition. The Court also noted that even based on the limited evidence, the issue of apparent agency was for the jury. Relying on Maryland law, the Court noted that Randolph had appeared at MGH for the purpose of getting health care services. Lee was wearing a MGH badge when she arrived, and it was reasonable for Plaintiff to believe that Dr. Lee was acting as the agent of MGH.

The Court denied MGH's motion for partial summary judgment.