467 P.3d 17
Or. Ct. App.2020Background
- Plaintiff Gail Towner sued Silverton Health (Silverton Hospital) after vascular injuries during a laparoscopic colectomy performed by Dr. Peter Bernardo at the hospital, alleging both vicarious and direct negligence by the hospital.
- Bernardo had staff privileges at Silverton, was on‑call for the ER, featured in hospital advertising as “chief of surgery,” but was not an employee and operated a private practice; the hospital paid only an on‑call fee.
- Trial court: struck plaintiff’s allegation that ORS 441.055 creates a nondelegable duty; dismissed negligent‑credentialing/supervision allegations under ORCP 21 A(8) (peer‑review privilege defense); granted summary judgment for hospital on vicarious liability (finding neither actual nor apparent agency).
- On appeal, the Court of Appeals: (a) affirmed striking the nondelegable‑duty allegation (ORS 441.055 does not impose such an absolute duty); (b) reversed the ORCP 21 A(8) dismissal of negligent‑credentialing/supervision claims (cannot assume peer‑review materials exist/are necessary on the face of the complaint); and (c) reversed summary judgment as to apparent agency (a fact question exists), but affirmed that actual agency was not shown as a matter of law.
- Relevant factual support for apparent‑agency: hospital advertising and promotions portraying surgical services, Bernardo publicly held out as chief of surgery (photo/plaque), ER summoned him and staff vouched for him, plaintiff had no notice he was not a hospital employee and relied on the hospital when choosing care.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 441.055 imposes a nondelegable duty on hospitals to ensure quality care by nonemployee physicians | ORS 441.055 makes the hospital/governing body responsible for quality of care and thus creates a nondelegable duty | The statute prescribes procedural/organizational licensing duties, not an absolute nondelegable duty making hospitals always liable for nonemployee physicians | Struck allegation was correctly dismissed; ORS 441.055 does not create a blanket nondelegable duty to ensure quality care by nonemployees |
| Whether allegations of negligent credentialing/supervision must be dismissed under ORCP 21 A(8) because defense requires privileged peer‑review materials | Towner: complaint pleads traditional negligent hiring/retention/supervision claims; proof may be obtained from non‑privileged sources | Silverton: peer‑review privilege (ORS 41.675) makes necessary documents inadmissible, so claim cannot be pleaded/defended | Reversed dismissal; on the face of the complaint the court could not assume privileged peer‑review records both exist and are necessary to mount an effective defense |
| Whether Bernardo was actual agent of the hospital (vicarious liability) | Hospital exercised sufficient control (by privileging, bylaws, ER call assignments, and using him in core surgical services) to support actual agency | Bernardo was an independent practitioner: hospital only paid on‑call fees, did not supervise daily practice or provide salary/benefits/overhead | Actual agency not shown as a matter of law; summary judgment on actual agency was proper |
| Whether Bernardo was apparent agent of the hospital (vicarious liability) | Hospital held itself out as direct provider and held Bernardo out (ads, photo/title, ER involvement); plaintiff relied on hospital rather than a particular independent physician | Hospital was merely the situs of care and patient also saw Bernardo in his private office; hospital did not have employee‑style control | Reversed summary judgment on apparent agency: reasonable juror could find hospital held itself out as provider, plaintiff reasonably relied, and hospital appeared to have control over injury‑causing act |
Key Cases Cited
- Eads v. Borman, 351 Or 729 (Or. 2012) (apparent authority framework and additional control‑over‑injury standard when agent causes physical injury)
- Eads v. Borman, 234 Or App 324 (Or. Ct. App. 2010) (analysis of actual agency and control factors for nonemployee physicians)
- Themins v. Emanuel Lutheran, 54 Or App 901 (Or. Ct. App. 1981) (hospital physician on rotation may be ostensible/actual agent when performing functions integral to hospital)
- Bridge v. Carver, 148 Or App 503 (Or. Ct. App. 1997) (written agreements and program control support actual agency for nonemployee physicians)
- Jennison v. Providence St. Vincent Medical Ctr., 174 Or App 219 (Or. Ct. App. 2001) (public relies on hospital reputation; hospital holding out can satisfy apparent agency)
- Vaughn v. First Transit, Inc., 346 Or 128 (Or. 2009) (restatement of principal's direct liability for negligent hiring/supervision)
- Deep Photonics Corp. v. LaChapelle, 282 Or App 533 (Or. Ct. App. 2016) (defendant may move to dismiss if privilege on the face of complaint prevents an effective defense; plaintiff may plead facts to show privilege inapplicable)
- Johnson v. Salem Title Co., 246 Or 409 (Or. 1967) (statutory imposition of nondelegable duty requires clear legislative intent)
- G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54 (Or. 1988) (hospitals are not per se absolutely liable for patient safety; situational liability possible)