Edward KASHISHIAN, Personal Representative of the Estate of Ruth Kashishian and WEA Insurance Corporation, Plaintiffs-Appellants, v. Issam AL-BITAR, M.D., Mount Sinai Medical Center, Wisconsin Health Care Liability Insurance Plan and Wisconsin Patients Compensation Fund, Defendants-Respondents.†
No. 94-1435
Court of Appeals of Wisconsin
Submitted on briefs April 4, 1995.—Decided May 23, 1995.
535 N.W.2d 105
†Petition to review denied.
On behalf of the defendants-respondents, the cause was submitted on the briefs of Michael P. Malone and Susan R. Tyndall of Hinshaw & Culbertson of Milwaukee.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
Ruth Kashishian had breast cancer. William Donegan, M.D., performed a modified mastectomy on her in 1978. In Decеmber of 1983, Dr. Donegan discovered that her cancer had returned, and, as a result of her dissatisfaction with her care at Milwaukee County‘s hospital, referred her to Hugh L. Davis, M.D., an oncologist on the staff of Mount Sinai. Dr. Davis was an employee of the University of Wisconsin Medical School and the Milwaukee Practice Plan, a non-profit corporation formеd to administer the medical school‘s teaching clinic at Mount Sinai. The Milwaukee Practice Plan employed those medical-school faculty members and others who worked at Mount Sinai as part of the medical school‘s teaching clinic.
In early April of 1986, Ruth Kashishian told Dr. Davis that she had shortness of breath. Dr. Davis determined that there was fluid between her left lung and thе lining of that lung, and, additionally, that there was fluid in the sack around her heart. Dr. Davis admitted her to Mount Sinai, as he did with almost all of his patients, and told the resident who took care of the admission details that she needed further treatment by lung and heart specialists. The admitting resident told Dr. Davis that Dr. Port was available for the cardiology evaluation and surgery, and Dr. Davis told the resident thаt he had no objection to Dr. Port. Although on Mt. Sinai‘s staff, Dr. Port was not its employee.
The operation was performed on April 4, 1986. A needle was inserted into the sack surrounding Ruth Kashishian‘s heart, and, ultimately, a catheter replaced the needle in order to draw off the fluid. The operation up to that point was performed by Issam Al-Bitar, M.D., a fellow in cardiology at the hospital,
Dr. Port testified that the decision to inject air into the sack surrounding Ruth Kаshishian‘s heart was his and his alone. He agreed that he did so “primarily as a teaching tool to demonstrate pericardial metastasis to Dr. Al-Bitar.”3 Edward Kashishian, as personal representative of Ruth Kashishian‘s estate, claims that the injection of air by Dr. Port caused her death. As noted, Kashishian seeks to hold Mount Sinai liable for Dr. Port‘s alleged negligence.
II.
Like Dr. Davis, Dr. Pоrt was an employee of the University of Wisconsin Medical School and of the Milwaukee Practice Plan; he was not an employee or actual agent of Mount Sinai. Kashishian, 167 Wis. 2d at 33-37, 481 N.W.2d at 280-281. Nevertheless, a medical-malpractice action may be maintained against a hospital for the negligence of a physician working in the hospital even though the physician is not employed by the hospital if the hospital has made it appear to the
Kashishian expanded the scope of Pamperin v. Trinity Memorial Hospital, 144 Wis. 2d 188, 207-208, 423 N.W.2d 848, 855-856 (1988), which held that unless the patient knows otherwise, the patient has a right to assume that those who render emergency-room services are employеd by the hospital. Id., 144 Wis. 2d at 207-208, 423 N.W.2d at 855-856.
[G]enerally people who seek medical help through the emergency room facilities of modern-day hospitals are unaware of the status of the various professionals working there. Unless the patient is in some manner put on notice of the independent status, it would be natural for the patient to assume that these peoplе are employees of the hospital.
Id., 144 Wis. 2d at 210, 423 N.W.2d at 856. There thus need not be an “express representation” that the person alleged to be negligent is an employee for the doctrine of apparent authority to apply. Id., 144 Wis. 2d at 209-210, 423 N.W.2d at 856. Accordingly, “except when the patient enters a hospital intending to receive care from a specific physician while in the hospital, it is the reputation of the hospital itself upon which a patient relies.” Id., 144 Wis. 2d at 212, 423 N.W.2d at 857.
[T]he critical distinction is whether the plaintiff is seeking care from the hospital itself or whether the plaintiff is looking to the hospital merely as a place for his or her personal physician to provide medical care. Except for one whо seeks care from a specific
physician, if a person voluntarily enters a hospital without objecting to his or her admission to the hospital, then that person is seeking care from the hospital itself. An individual who seeks care from a hospital itself, as opposed to care from his or her personal physician, accepts care from thе hospital in reliance upon the fact that complete emergency room care—from blood testing to radiological readings to the endless medical support services—will be provided by the hospital through its staff.
Id., 144 Wis. 2d at 211-212, 423 N.W.2d at 857.
Kashishian extended the rationale underlying Pamperin to all hospital services, see Kashishian, 167 Wis. 2d at 37, 481 N.W.2d at 281 (doctrine of apparent authority can apply “when a patient is admitted by her own personal attending physician and then rеceives services at the hospital“), and adopted Pamperin‘s three-part test:
- the hospital, or the individual alleged to be negligent, acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital;
- where the acts of the individual alleged to be negligent creаte the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and
- the plaintiff acted in reliance upon the conduct of the hospital or the individual alleged to be negligent, consistent with ordinary care and prudence.
Kashishian, 167 Wis. 2d at 44, 481 N.W.2d at 284-285; see also Pamperin, 144 Wis. 2d at 203, 423 N.W.2d at 854. Under this test, as applied to the hospital/physician/рatient relationship, a hospital cloaks
Kashishian directed the trial court in this case to determine whether Dr. Port was Mount Sinai‘s apparent agent in his care and treatment of Ruth Kashishian. Id., 167 Wis. 2d at 49, 481 N.W.2d at 287. After a bench trial, the trial court, reading the three-part test literally, concluded that neither Mount Sinai nor Dr. Port did anything that would lead a reasonable person in Ruth Kashishian‘s position to believe that Dr. Port was Mount Sinai‘s agent or employee, and that the plaintiff did not prove that Ruth Kashishian relied on “the alleged agency relationship betweеn Mount
Whether Dr. Port was Mount Sinai‘s apparent agent or employee here is a legal issue. See Doerr v. Doerr, 189 Wis. 2d 112, 121 n.8, 525 N.W.2d 745, 749 n.8 (Ct. App. 1994) (whether facts fulfill a legal standard is a question of law). Appellate courts usually decide legal issues de novo. Ibid. Nevertheless, where, as here, the lеgal issues are intertwined with the underlying facts, a trial court‘s legal conclusions on those issues are entitled to substantial weight. See Ballenger v. Door County, 131 Wis. 2d 422, 427, 388 N.W.2d 624, 628 (Ct. App. 1986); cf. Kashishian, 167 Wis. 2d at 49, 481 N.W.2d at 287 (Whether Dr. Port was Mount Sinai‘s apparent agent “is one for the trier of fact.“). The trial court here, however, made few findings of historical fact that were pertinent to the issue of whether Dr. Port was Mt. Sinai‘s apparent agent. We conclude thаt the trial court misapplied the law as crafted by Pamperin and Kashishian; namely, contrary to the concurrence‘s implication, there is no evidence here that Ruth Kashishian either was told or knew that Dr. Port was not an employee of Mt. Sinai. Thus, part one of the Pamperin/Kashishian test was met here as a matter of law. Further, the evidence is undisputed that Ruth Kashishian did not enter Mt. Sinai with the intent “to receive care from a specific physician.” See Pamperin, 144 Wis. 2d at 212, 423 N.W.2d at 857. Thus, there was also “reliance” here under the Pamperin/Kashishian test as a matter of law.
In support of his position that Dr. Port was Mount Sinai‘s apparent agent, Mr. Kashishian marshals from
In opposition to Mr. Kashishian‘s argument that Dr. Port was its apparent agent, Mount Sinai points out that those physicians employed by the Milwaukee Practice Plan were required to wear name tags identifying themselves as members of the University of
None of the facts marshalled by the parties and which we have related is disputed. They show that Ruth Kashishian was admitted to Mount Sinai by Dr. Davis for cardiac consultation and treatment that was to be done by other physicians. There is no evidence in the record that Ruth Kashishian knew that Dr. Port was also an employee of the Milwaukee Practice Plan and the University of Wisconsin Medical School. Thus, the first element of the Kashishian/Pamperin test has been satisfied. See Pamperin, 144 Wis. 2d at 210, 423 N.W.2d at 856 (“Unless the patient is in some manner put on notice of the independent status, it would be natural for the patient to assume that these people are employees of the hospital.“). The “reliance” element of that test has also been satisfied. Ruth Kashishian did not seek treatment for her heart condition from a specific physician. Dr. Port was one of many who were available; he was, in effect, selected for her by the admitting resident at Mount Sinai. Thus, she wаs “seeking care from the hospital itself.” See id., 144 Wis. 2d at 212, 423 N.W.2d at 857 (“[E]xcept when the
By the Court.—Judgment reversed.
Edward KASHISHIAN, Personal Representative of the Estate of Ruth Kashishian and WEA Insurance Corporation, Plaintiffs-Appellants, v. Issam AL-BITAR, M.D., Mount Sinai Medical Center, Wisconsin Health Care Liability Insurance Plan and Wisconsin Patients Compensation Fund, Defendants-Respondents.†
No. 94-1435
Court of Appeals of Wisconsin
Submitted on briefs April 4, 1995.—Decided May 23, 1995.
SCHUDSON, J. (concurring). I agree that Edward Kashishian offered substantial evidence on which the trial court could have ruled in his favor on a theory of apparent agenсy. I am not as certain as the majority, however, that the evidence compelled that conclusion as a matter of law.
As the majority explains, to establish apparent agency, the plaintiff in this case would have had to prove: (1) that Mt. Sinai or Dr. Port “acted in a manner which would lead a reasonable person to conclude that [Dr. Port] was an еmployee or agent of [Mt. Sinai]“; (2) if the proof of the first element related solely to Dr. Port‘s actions rather than to those of the hospital, that Mt. Sinai “had knowledge of and acquiesced in” the acts creating the appearance of authority; and (3) that Ruth Kashishian “acted in reliance upon the conduct of [Mt. Sinai] or [Dr. Port], consistent with ordinary care and prudence.” Kashishian, 167 Wis. 2d at 44, 481 N.W.2d at 284-285. The trial court concluded that the plaintiff “failed to produce sufficient evidence” to establish the first and third elements.
The evidence in this case was mixed and somewhat uncertain. Because Ruth Kashishian died, the parties could not present all the direct evidence that otherwise would have been available. In all likelihood, such еvidence would have been highly probative on the third element and, possibly, could have been probative on
Nevertheless, I concur in the majority‘s result because Edward Kashishian should have prevailed on his second theory of liability: joint treatment doctrine/respondeat superior. Mt. Sinai, as Dr. Al-Bitar‘s employer, does not dispute its liability for the negligence of Dr. Port under the doctrine of respondeat superior if Dr. Port and Dr. Al-Bitar jointly treated Ms. Kashishian. The undisputed facts establish that they did so.
Dr. Al-Bitar performed Ms. Kashishian‘s surgery under Dr. Port‘s supervision until the point at which difficulties led to Dr. Port‘s intervention. The trial court concluded, however, that they were not jointly treating because “the decision to inject air into Ms. Kashishian‘s pericardium . . . was a decision made solely by Dr. Port” and that he “was in exclusive charge of the procedure at the time air was injected, and had responsibility for the patient at that time.” Dr. Port‘s exclusive control at that point, however, did not alter the apparent joint treatment that he and Dr. Al-Bitar had provided throughout the operation. Thus, as a matter of law, the undisputed facts established Mt.
Notes
When I was not able to get good flow from the catheter, [Dr. Port] took over for me and he basically injected the air. At that point, I was informed about it to tell me that [sic]— He was explaining to me how air is used as a contrast to delineate the рericardium and also to define or show the presence of metastasis in the pericardium.