Certiorari was granted in
Brown v. Coastal Emergency Services, Inc.,
The complaint was filed in Fulton Superior Court by Isiah J. Brown and Jessie Lee Brown, husband and wife. They alleged Isiah Brown was injured in an automobile collision on May 7, 1983 and transported to an emergency room operated on its hospital premises by Richmond County Hospital Authority doing business as University Hospital. They alleged he was treated in the emergency room and later in the hospital by two doctors who were employees of the hospital, Dr. David Fowler and Dr. Michael Willoughby. The Browns contended that Isiah Brоwn was seriously injured due to the negligent rendering of medical services by the two doctors. This alleged negligence was charged to University Hospital on the basis of respondeat superior. It was also charged against Coastal Emergency Services, Inc. (Coastal) which the Browns claimed was the immediate employer of the doctоrs and arranged for services by the doctors in University Hospital’s emergency room.
Later the complaint was amended to allege certain facts which
The trial court granted summary judgment to both Coastal and University Hospital finding from evidenсe produced on the motions of the defendants and other discovery it was without dispute that the doctors were independent contractors and not employees or agents of either Coastal or University Hospital. The trial court’s order did not expressly address the issue of ostensible agency but, of course, had the effect оf declining to apply the principle in favor of the Browns. This left only the doctors as defendants and since venue in Fulton County depended on Coastal being a defendant, the case was ordered transferred to Richmond County, residence of Dr. Willoughby.
The Court of Appeals agreed that summary judgment was properly granted on the issue of actual agency between the doctors on the one hand and Coastal and University Hospital on the other. But, recognizing this as a case of first impression in Georgia, it wаs held the trial court erred in granting total summary judgment to University Hospital because the allegation of ostensible agency as to the hospital was not pierced by facts. The Court of Appeals held there was an adequate showing for summary judgment on this issue as to Coastal.
The doctrine of apparent or ostensible agency is stаted in Restatement of the Law, Agency, § 267:
“One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the carе or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servаnt or other agent as if he were such.”
As the comment in the Restatement makes plain, the essence of the doctrine is that one represents that another is onе’s agent so that plaintiff justifiably relies on the care or skill of the apparent agent whose negligence causes the injury. It is not enough that plaintiff sim
Across the nation the ostensible agency doctrine has been widely applied to certain hospital/doctor arrangements. In particular it has been applied to emergency room settings. See the citations listed by the Court of Appeals in
Brown,
supra at 896. See also Butler and Laszlo, “Hosp. Liability for Physician Negligence in Ga.: A Realistic Approach,” 37 Mercer L. Rev. 701 (Winter 1986). We note too that the result we reach today was anticipated by Judge Murphy in
Stewart v. Midani,
525 FSupp. 843 (4) (1981). The history and development of this law will not be set out here but we observe it has been well considered by Justice Leibson in
Paintsville Hosp. Co. v. Rose,
The argument is made by University Hospital and in briefs of a number of amici that a physician is licensed to practice medicine, exercises special knowledge and skill, and therefore may not be controlled in these functions by another. Thus, they maintain, Drs. Fоwler and Willoughby cannot in any event be agents of the hospital for the performance of their professional duties. The tortured application of this view through the years is analyzed in the Court of Appeals’ opinion. There may have been a time when all the world knew hospitals were mere structures where physicians treated and cared for their patients. In such a society one would be hard pressed to show that he justifiably relied on the hospital to care for his illness or injury through doctors employed for that purpose. But the situation has evolved. Most modern hospitals hold themselves out to the public as providing many health related services including services of physicians. A patient is likely to look to the hospital, not just to a particular doctor he comes into contact with through the hospital. That is
It should be noted that the doctrine can seldom apply to the custоmary situation in which a patient consults his own doctor who then has him admitted to a hospital where the doctor renders negligent medical services. In such a case there is no representation or holding out by the hospital to the patient. The hospital does not furnish him a doctor. He obtains his own.
Judgment affirmed.