ON CIVIL PETITION TO TRANSFER
Norton’s Children’s Hospital (“Norton” or “defendant”) challenges the decision of the Court of Appeals which reversed the trial court’s decision granting summary judgment for Norton in this medical malpractice action.
Sword v. NKC Hosp., Inc.,
We previously granted Norton’s petition for transfer and now address the following issues: 1) whether the trial court erred in resolving the choice of law question by applying Indiana rather than Kentucky law; 2) whether an application of the doctrine of apparent or ostensible agency is appropriate and warrants a conclusion that there are genuine issues of material fact in dispute on that issue; and 3) whether there is a genuine issue of material fact as to causation. Although we conclude that the trial court correctly resolved the choice of law question, the trial court erred when it concluded that, as a matter of law, Norton was not liable to Sword because an independent contract physician assertedly committed the negligent acts and because the record did not establish material issues of fact on the question of causation. Accordingly, we reverse thе trial court’s grant of summary judgment in favor of defendant on the apparent agency and causation issues and remand for further proceedings not inconsistent with this opinion.
FACTS
The facts taken in the light most favorable to the non-moving party are as follows. Diana Sword lives in southern Indiana. On April 24,1991, Diana Sword and her husband entered Norton in Louisville, Kentucky for the delivery of their first child. Prior to entering the hospital, Sword consulted with her obstetrician about whether or not to deliver with the help of an anesthetic. Her obstetrician recommended using an epidural; he told Sword that the epidural procedure would numb her from the waist down, and that he used them frequently. Sword decided to have an epidural. She, however, did not know in advance who would administer the epidural.
Sword also made arrangements to go to Norton through her obstetrician’s office. Norton aggressively marketed its services to the public. It stated in brochures that'its Women’s Pavilion is “the most technically sophisticated birthplace in the region.” (R. at 228.) Norton also advertised that it offers:
[Ijnstant access to the specialized equipment and facilities, as well as to physician specialists in every area of pediatric medicine and surgery. Every maternity patient has a private room and the full availability of a special anesthesiology team, experienced and dedicated еxclusively to OB patients.
Id. (emphasis added). One brochure stated that:
The Women’s Pavilion medical staff includes the only physicians in the region who specialize exclusively in obstetrical anesthesiology. They are immediately available within the unit 24 hours a day and are experts in administering continuous epidural anesthesia.
(R. at 232.) (emphasis added).
At some point during her labor, an anesthesiologist came into Sword’s room. He explained the epidural procedure and how it would make her feel. He told her that he would stick the tubing for the epidural in her lower back and then she would feel numbness from the waist down. As the anesthesiologist was preparing to begin the procedure, he was called out of the room.
Five to ten minutes later, a second anesthesiologist, Dr. Luna, came into Sword’s room to administer the epidural. The parties do not dispute that Dr. Luna practiced medicine at Norton as an independent contractor. After verifying that the previous anesthesiologist had explained the procedure to Sword, Dr. Luna began the epidural procedure. As Sword sat on the bed and leaned forward, Dr. Luna began inserting the epidural tubing. Dr. Luna first inserted the tubing near the top of Sword’s neck. Shortly thereafter, Dr. Luna removed the epidural tubing “because it did not take” and then reinserted it in Sword’s lower back. (R. at 181-82.)
Soon after the delivery of her healthy baby, Sword began to have headaches which recur every four to six weeks. When the headaches occur, Sword is very sensitive to light and sound. In addition to the headaches, she also feels a numbness in her back where the second epidural was administered. Sword alleges that these symptoms are a *146 result of Dr. Luna’s negligent placement of the epidural tubing and that Norton is liable.
I. Standard of Review
To determine whether the trial court correctly granted summary judgment, this Court applies the same standard as did the trial court.
See Trotter v. Nelson,
II. Choice of Law
The trial court decided the case on the basis of Indiana law and ruled that any choice of law issue was not properly raised. Sword argues that the trial court erred by not using Kentucky law to decide the case. We find that any choice of law issue was not proрerly raised and, thus, is waived. As a result, the trial court properly applied Indiana law to this case.
Under the Uniform Judicial Notice of Foreign Law Act,
1
a party may raise a choice of law issue and may inform the trial court of the law of other states by offering evidence of such law or by asking the court to take judicial notice of such law. Ind.Code § 34-38-4-4 (1998) (formerly codified at Ind.Code § 34-3-2-4 (1993)). Providing the trial court with notice of the foreign law allows the court to consider whether the other state’s or Indiana’s law should apply.
See Harvest Ins. Agency, Inc. v. Inter-Ocean Ins. Co.,
Here, Sword failed to give reasonable notice to Norton that Kentucky law should be applied to any of the substantive issues. Sword argues that notice was given because 1.) a sister action was pending in a Kentucky court; 2.) the details of the complaint make it clear that Kentucky law should apply; and 3.) the issue of Kentucky law was raised at the summary judgment hearing. None of these arguments are persuasive.
First, the fact that an accident occurred in a state other than Indiana does not provide reasonable notice that a party will seek to use the other state’s law.
See Williams,
To support her second argument, Sword cites to
Revlett v. Louisville & N.R. Co.,
Finally, while it is true that Sword did indicate to the court and to Norton during the summary judgment hearing that she wished to apply Kentucky law to the agency issue,
2
this was not reasonable, notice. The purpose of the notice requirement is to allow the other рarty time to prepare by studying the applicable law.
See generally
C.T. Drechsler, Annotation,
Uniform Judicial Notice of Foreign Law Act,
III. Apparent or Ostensible Agency
The principal issue in this case is whether, under Indiana law, Norton can be held liable for the alleged negligence of an independent contractor anesthesiologist. Sword is seeking to hold Norton liable for the аlleged negligence which caused her injuries. There are no allegations of direct corporate negligence, that is, that the hospital itself was negligent. Because the alleged negligence was not committed by Norton, but instead by a physician working at Norton, Sword must present a theory by which a court can find the hospital vicariously liable for the actions of a physician who practices there. After reviewing the basic tort and agency concepts relevant to theories of vicarious liability, as well as the jurisprudence in Indiana and other jurisdictions, in the specific context of this case, we adopt the theory of apparent and ostensible agency formulated in the Restatement (Second) of Torts section 429 (1965). We then conclude that there are genuine issues of material fact in dispute as to the existence of an apparent or ostensible agency relationship here.
A. Vicarious Liability
Vicarious liability is “indirect legal responsibility.” Black’s Law DictionaRY 1404 (5th ed.1979). It is a legal fiction by which a court can hold a party legally responsible for the negligence of another, not because the party did anything wrong but rather because of the party’s relationship to the wrongdoer. See Keeton, Torts § 69. Courts employ various legal doctrines to hold people vicariously liable, including responde-at superior, apparent or ostensible agency, agency by estoppel, 3 and the non-delegable duty doctrine. 4 Some doctrines are based in *148 tort law, some are based in agency law. Courts often discuss the various doctrines as if they are interchangeable; they are not. We will address each applicable doctrine in turn.
Respondeat superior is the applicable tort theory of vicarious liability. Under respondeat superior, an employer, who is not liable because of his own acts, can be held liable “for the wrongful acts of his employee which are committed within the scope of employment.”
Stropes v. Heritage House Childrens Ctr.,
One important aspect in applying respondeat superior is differentiating between those who are servants and those who are independent contractors. A servant is defined in the following general manner: one who is employed by a master to perform personal services and whose physical conduct is subject to the right to control by the master. See Keeton, Torts § 70; Seavey, Agency § 84; Restatement (Second) of Agenoy § 2(2) (1958). It is the employer’s right to control that generally separates a servant from an independent contractor. See Keeton, Torts § 71; Seavey, Agency § 84 cmt. c; Restatement (Second) of Agency § 2 cmt. a. An independent contractor can, therefore, be defined as “a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Restatement (Second) of Agency § 2(3).
It is important to distinguish between servants and independent contractors in the tort context
5
because, while a master can be held liable for a servant’s negligent conduct under respondeat superior, a master generally cannot be held liable for the negligence of an independent contractor.
See Burkett,
Apparent agency is a doctrine based in agency law. It is most often associated with contracts and the ability of an agent with “apparent authority” to bind the principal to a contract with a third party.
See Pepkowski v. Life of Indiana Ins. Co.,
In certain instances, apparent or ostensible agency also can be a means by which to *149 establish vicarious liability. One enunciation of this doctrine is set forth in the Restatement (Second) of Agency section 267, which provides that:
One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care 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 servant or other agent as if he were such.
(emphasis added) [hereinafter “Section 267”]. Under a Section 267 analysis, if, because of the principal’s manifestations, a third party reasonably believes that in dealing with the apparent agent he is dealing with the principal’s servant or agent and exposes himself to the negligent conduct because of the principal’s manifestations, then the principal may be held liable for that negligent сonduct. See Restatement (Second) of Agency § 267 cmt. a; see also Restatement (Second) of Torts § 429; Seavey, Restatement (Second) of Agency §§ 8 cmt. D, 90 cmt. A, 91 cmt. B.
Another similar enunciation of this doctrine is set forth in the Restatement (Second) of Torts section 429 (1965), which is captioned “Negligence in Doing Work Which is Accepted in Reliance on the Employer’s Doing the Work Himself’ and which provides:
One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent аs though the employer were supplying them himself or by his servants.
(emphasis added) [hereinafter “Section 429”]. Both Section 267 and Section 429 are estoppel-based. To the extent that Section 429 differs from Section 267 when applied in the hospital context, the primary difference appears to be that the reliance element is less subjective under Section 429. 6
B. Indiana Jurisprudence
In the hospital setting, Indiana courts have long followed the general rule that hospitals could not be held liable for the negligent actions of independent contractor physicians. In early cases, courts held that, because hospitals are corporations and corporations cоuld not legally practice medicine, the doctrine of respondeat superior could not be applied as between hospitals and physicians, even if those physicians were employees of the hospital rather than independent contractors.
See Iterman v. Baker,
As the Court of Appeals correctly observed, however, the holding of
Herman
has eroded over time, and courts no longer allow hospitals to use their inability to practice medicine as a shield to protect themselves from liability.
C. Evolving Law in Other Jurisdictions
In the area of hospital liability, there has been an ongoing movement by courts to use apparent or ostensible agency as a means by which to hold hospitals vicariously liable for the negligence of some independent contractor physicians.
See, e.g., Clark v. Southview Hosp. & Family Health Ctr.,
Courts that have held hospitals liable for the negligence of independent contractor physicians under apparent agency have sometimes referred to or adopted Section
*151
267,
12
Section 429,
13
or both,
14
and sometimes have not referred to or adopted either Section 267 or Section 429.
15
While the language employed by these courts sometimes varies, generally they have employed tests which focus primarily on two basic factors. The first factor focuses on the hospital’s manifestations and is sometimes described as an inquiry whether the hospital “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.”
Kashishian,
The second factor focuses on the patient’s reliance. It is sometimes characterized as an inquiry as to whether “the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.”
Kashishian,
Central to both of these factors — that is, the hospital’s manifestations and the patient’s reliance — is the question of whether the hospital provided notice to the patient that the treating physician was an indepеndent contractor and not an employee of the hospital.
See, e.g., Seneris,
*152 D. Adoption of Restatement (Second) of Torts Section 429
In the present case, Sword argues that, under the doctrine of apparent or ostensible agency, Norton is vicariously liable for the actions of its apparent agent Dr. Luna, whom the parties agree was an independent contractor. The Court of Appeals held that Dr. Luna could be an apparent agent of Norton, and that there were genuine issues of material fact in dispute on this question. The Court of Appeals, however, reached this conclusion by looking to Indiana jurisprudence which, to date, had not clearly defined a test for determining apparent agency in the hospital context and which had not adopted either Restatement position. The Court of Appeals invited us to consider the appropriateness of more clearly defining a test and adopting one of the two formulations of the test set forth in the Restatements.
Sword,
Under Section 429, as we read and construe it, a trier of fact must focus on the reasonableness of the patient’s belief that the hosрital or its employees were rendering health care. This ultimate determination is made by considering the totality of the circumstances, including the actions or inactions of the hospital, as well as any special knowledge the patient may have about the hospital’s arrangements with its physicians. We conclude that a hospital will be deemed to have held itself out as the provider of care unless it gives notice to the patient that it is not the provider of care and that the care is provided by a physician who is an independent contractor and not subject to the control and supervision of the hospital. A hospital generally will be able to аvoid liability by providing meaningful written notice to the patient, acknowledged at the time of admission.
See Cantrell v. Northeast Georgia Med. Ctr.,
As to the meaning and importance of reliance in this specific context, we agree with the cases that hold that if the hospital has failed to give meaningful notice, if the patient has no special knowledge regarding the arrangement the hospital has made with its physicians, and if there is no reason that the patient should have known of these employment relationships, then reliance is presumed.
See Seneris,
Applying this test here, we conclude that there are genuine material issues of fact in dispute as to whether Dr. Luna was an apparent or ostensible agent of Norton and whether Norton may be held liablе for any of Dr. Luna’s asserted negligent acts. First, there is nothing in this record which indicates that the hospital did anything to put plaintiff on notice that it was her physician, an independent contractor, who was responsible for her medical care and not the hospital. 16 Second, this is clearly not a case *153 where plaintiff selected her own anesthesiologist prior to admission, for she specifically testified that she did not know who would administer the epidural until just before the procedure, and if she had any special knowledge of the hospital’s employment arrangement with Dr. Luna or with the hospital’s general employment practices with respect to physicians, it is not apparent on this record. Finally, Nortоn held itself out, through an extensive advertising campaign, as a full-service hospital which specializes in obstetric care.
Based on this record and under Section 429 as we construe it today, there are clearly genuine issues of material fact as to whether Dr. Luna is an apparent agent of Norton. The trial court erred when it entered summary judgment for defendant on this issue.
IV. Causation
Plaintiff also challenges the trial court’s finding that the affidavits included in the record are insufficient to create a material issue of fact as to causation. Plaintiff submitted an affidavit by Dr. Davidson who simply testified that, in his opinion, Dr. Luna’s care fell below the standard of care required by physicians administering an еpidural. Plaintiff also submitted an affidavit by Dr. Milan, which states that: “Plaintiffs symptoms of low back pain and headaches are consistent with the loss of spinal fluid which accompanied the insertion of the epidural in the cervical region of the Plaintiffs back.” (R. at 100.) Defendant argues that the doctors’ affidavit testimony does not establish that there is a material issue of fact as to causation. In particular, defendant points to the fact that Dr. Milan states only that her injuries are “consistent with” a loss a spinal fluid and not that the loss of spinal fluid “caused” her injuries. Id. While the doctors’ affidavits do not expressly state that Dr. Luna’s negligence caused plaintiffs injuries, a reasonable jury certainly could infer and conclude based on this testimony that her injuries resulted from an improperly administered epidural. Because under the applicable standard of review, every inference must be resolved in favor of plaintiff, we agree with the conclusion reached by the Court of Appeals. There is a genuine issue of material fact as to whether Dr. Luna caused plaintiffs injuries, and the trial court erred by granting summary judgment for defendant on this issue.
CONCLUSION
Accordingly, we affirm that portion of the trial court’s decision which ruled that Indiana law applies, but reverse the trial court’s grant of summary judgment for defendant on the apparent agency and causation issues. We remand to the Clark Circuit Court for further proceedings not inconsistent with this opinion.
Notes
. Act of Mar. 9, 1937, Pub.L. No. 172, 1937 Ind.Acts 703 (codified as amended at Ind.Code §§ 34-38-4-1 to 34-38-4-7 (1998)).
. The Kentucky law that Sword wished to apply was
Paintsville Hosp. Co. v. Rose,
. Courts holding hospitals liable under an agency theory often interchangeably describe the theory as “apparent agency" and “agency by estoppel.”
See
Martin C. McWilliams, Jr. & Hamilton E. Russell, III,
Hospital Liability for Torts of Independent Contractor Physicians,
47 S.C.L.Rev 431, 445-46 n. 76 (1996); Diane M. Janulis & Alan D. Hornstein,
Damned if You Do, Damned if You Don’t: Hospitals’ Liability for Physicians' Malpractice,
64 NebL.Rev. 689, 696 (1985). The distinction, if any, is that agency by estoppel requires both reliance and a change in position. Restatement (Second) of Agency § 8 cmt. d.
See also Hope Lutheran Church v. Chellew,
. While a master is generally not liable for the negligence of an independent contractor, the master may be liable if the independent contractor was performing a non-delegable duty.
See, e.g., Bagley v. Insight Communications Co.,
. While servants and independent contractors are different in a tort context, this is not necessarily true in an agency context. In the agency context, both a servant and an independent contractor can be an agent of the principal.
See Burkett,
. See generally McWilliams, supra note 3, at 445-52, 457-62.
. Some courts have distinguished between medical acts of hospital employees, which under
Iter-man
cannot be imputed to the hospital, and administrative acts, which can result in hospital liability.
See, e.g., Keene v. Methodist Hosp.,
. See, e.g., Hinshaw v. Board of Comm’rs,
.
See Hospital Corp. of Am., Inc. v. Hiland,
.
See also Seneris v. Haas,
. See also Kashishian,
.
See, e.g., Paintsville Hosp. Co.,
.
See, e.g., Arthur v. St. Peters Hosp.,
.
See, e.g., Sharsmith v. Hill,
. See, e.g., Gilbert v. Sycamore Mun. Hosp.,
. In a deposition colloquy, counsel made a general reference to а document titled "Condition of Admission and Authorization for Treatment," which assertedly informed plaintiff that her physician is not an employee of the hospital, and that the hospital is not liable for any acts of the practicing physician. That document, however, is not in the record, and no witness testified regarding that document. Nevertheless, even assuming the accuracy of counsel's representations during this colloquy, it is far from clear that this document would constitute sufficient notice of the relationship between the hospital and the physician within the meaning of the rule we articulate today. In fact, it is likely insufficient notice if- it is the sole source of notice and if *153 plaintiff did not read or sign that form until she arrived at the hospital in active labor.