Danielle Helms v. Max H. Rudicel, M.D., Open Door/BMH Health Clinic (a division of Cardinal Health Systems), Cardinal Health Systems, d/b/a Ball Memorial Hospital

FOR PUBLICATION
Apr 09 2013, 8:53 am

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JERRY GARAU Attorneys for Cardinal Health Systems d/b/a
Garau Germano Hanley & Pennington, P.C. Ball Memorial Hospital
Indianapolis, Indiana EDWARD L. MURPHY, JR.
WILLIAM A. RAMSEY
Murphy Ice & Koeneman LLP
Fort Wayne, Indiana

IN THE
COURT OF APPEALS OF INDIANA
DANIELLE HELMS, )
)
Appellant-Plaintiff, )
)
vs. ) No. 18A04-1202-CT-70
)
MAX H. RUDICEL, M.D., OPEN DOOR/BMH )
HEALTH CLINIC (a division of Cardinal Health )
Systems), CARDINALHEALTH SYSTEMS, )
d/b/a BALL MEMORIAL HOSPITAL, ANNA M. )
STEINBARGER, NP, and EMERGENCY )
PHYSICIANS OF DELAWARE COUNTY, P.C., )
)
Appellees-Defendants. )

APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Marianne L. Vorhees, Judge
Cause No. 18C01-1107-CT-32

April 9, 2013

OPINION – FOR PUBLICATION

MAY, Judge
 Danielle Helms filed a lawsuit in Delaware Circuit Court (hereinafter “trial court”)

against Dr. Max Rudicel, the Open Door Health Clinic (“the Clinic”), Cardinal Health

Systems d/b/a Ball Memorial Hospital (“BMH”), Nurse Practitioner Anna Steinbarger, and

Emergency Physicians of Delaware County for malpractice related to treatment she received

during her pregnancy. The Defendants filed a motion for summary judgment because a

federal court had already determined Dr. Rudicel and the Clinic were federal employees,1 and

the limitation period during which Helms could have filed suit had run under the Federal Tort

Claims Act (FTCA), 28 U.S.C. 2679.

The trial court determined the federal decision was res judicata as to negligence

claims related to the Clinic or Dr. Rudicel’s work there. It also determined BMH was not

vicariously liable for actions by the Clinic or by Dr. Rudicel while at the Clinic. The court

therefore dismissed the action against the Clinic with prejudice. However, the trial court

found a question of fact regarding whether BMH might be vicariously liable for actions at

BMH of Dr. Rudicel and Nurse Practitioner Steinbarger.

Helms appeals, arguing (1) the federal decision is not res judicata because that court

did not address the issue now before us, (2) the medical providers at the Clinic might have

been apparent agents of BMH, and (3) BMH might be vicariously liable even though the

1
The federal court’s decision explicitly mentioned only Dr. Rudicel and the Clinic. It did not address the
Nurse Practitioner or Emergency Physicians, who are named parties in this appeal. The appeal before us arises
out of Helms’s motion for preliminary determination of law and for partial summary judgment on the limited
issue as to whether BMH/Cardinal Health Systems might have some liability for acts of Dr. Rudicel and the
Clinic as their apparent principal. The parties do not address the Nurse Practitioner except to the extent she
might be included as one of the health care providers who treated Helms at the Clinic. Nor do they address
whether acts by Emergency Physicians are implicated by any issues raised in Helms’s motion.

2
Doctor and Clinic are immune from liability. On cross-appeal, BMH challenges the

determination BMH might have vicarious liability, arguing BMH told Helms its healthcare

providers were independent contractors.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY2

In June of 2005, Helms saw Dr. Rudicel at the BMH emergency room. Dr. Rudicel

diagnosed Helms’ pregnancy and referred her to the Clinic for prenatal care. On multiple

occasions between June and December 2005, Helms was treated by Dr. Rudicel or a resident

who was working under his supervision.

When Helms went to BMH during this period, she signed a consent form that stated

“many of the physicians and other health care providers,” (e.g., App. at 187), who treat

patients at Cardinal Health System facilities are not employed by BMH, but are independent

contractors who have been “granted the privileges of using Cardinal Health System facilities

to treat patients.” (Id.) Dr. Rudicel and Nurse Practitioner Steinbarger were not BMH

employees.

A sign at the Clinic during that period read “OPEN DOOR/BMH HEALTH

CENTER” and “CARDINAL HEALTH SYSTEMS, PARTNERS IN BILLING.” (App. at

66.) Helms’s medical records were labeled “Ball Memorial Hospital Obstetrical

History/Physical/Prenatal Record.” (Id. at 79.) Her appointment reminders were from “Open

2
We heard oral argument in Indianapolis on February 18, 2013, before participants in the Indiana State Bar
Association Leadership Development Academy. We thank the Academy for joining us, and we commend
counsel on the quality of their oral advocacy.
3
Door/BMH Health & Dental Center.” (Id. at 77.) A patient information handout said Dr.

Rudicel was “in charge of the day to day running of the OB clinic,” (id. at 72), and the Clinic

was “part of the Medical Education program at Ball Memorial Hospital” so there would be

interns and residents working with Dr. Rudicel. (Id.) It said there were nurse practitioners in

training from time to time, and that patients might not see Dr. Rudicel at each visit, but he

and the residents “do the deliveries.” (Id.) The residents who saw Helms at the Clinic were

in a “residency program through Cardinal Health Ball Memorial Hospital,” (id. at 118), and

BMH paid their salaries.

Helms believed the Clinic was part of BMH and Dr. Rudicel and the residents were

employed by BMH. She “assumed,” (App. at 66), from the information noted above, that Dr.

Rudicel and the interns and residents who cared for her were providing the services “by and

through” BMH. (Id.)

Helms filed a complaint in October 2007 before the Department of Insurance, alleging

negligence in her prenatal care between June and December 2005 resulted in a stillbirth. In

December 2007, Helms learned the Clinic was not a division of BMH, but was a federally-

supported health care center. The Clinic and its employees were therefore considered federal

employees3 and were immune from suit pursuant to the FTCA. By the time Helms

3
42 U.S.C. § 233(g)(1)(a) provides an entity deemed a Public Health Service employee, and any:
employee of such an entity, and any contractor of such an entity who is a physician or other
licensed or certified health care practitioner . . . shall be deemed to be an employee of the
Public Health Service. . . . The remedy against the United States for an entity described in
paragraph (4) and any officer, governing board member, employee, or contractor (subject to
paragraph (5)) of such an entity who is deemed to be an employee of the Public Health
Service pursuant to this paragraph shall be exclusive of any other civil action or proceeding to
4
discovered these statutes applied, the two-year limitations period for a federal tort claim had

expired. Helms brought an action in federal court anyway, and the court granted summary

judgment for the United States. Adkins4 v. United States, acting by & through United States

D.H.H.S., 1:10-CV-0018-JMS-DML, 2011 WL 666713 (S.D. Ind. Feb. 14, 2011).

In July 2011, Helms moved in the Delaware Circuit Court5 for partial summary

judgment on the question whether the people who treated her at the Clinic were apparent

agents of BMH as a matter of law. BMH brought a cross-motion in which it argued the

federal court’s decision bars Helms from pursuing an action against BMH. The trial court

held:

1. [BMH] is not vicariously liable for any act of [the Clinic] or its
employees or any act of Dr. Rudicel performed at the Clinic.
2. [BMH] may be vicariously liable for any act of Dr. Rudicel or Nurse
Practitioner Steinbarger at BMH. There is a fact question whether the Consent
Form given to [Helms] at the Hospital was adequate notice that Dr. Rudicel
and N.P. Steinbarger were not Hospital employees or agents when providing
care to Helms at the Hospital’s Emergency Room.
3. The Motion to Dismiss filed by [the Clinic] is well taken and should be
granted. [The Clinic] is dismissed from this action with prejudice.
4. The Order from the Southern District of Indiana on the Motion for
Summary Judgment is res judicata as to claims of negligence related to [the
Clinic] and Dr. Rudicel’s actions at the Clinic.
5. [The clinic] and [BMH] are separate entities. [BMH] is not liable for
action of the Clinic.

the same extent as the remedy against the United States is exclusive pursuant to subsection (a)
of this section.
4
Adkins was Helms’s co-plaintiff.
5
Ind. Code § 34-18-11-1 provides a court that has jurisdiction over the subject matter and the parties to a
proposed complaint filed with the Department of Insurance may preliminarily determine certain affirmative
defenses or issues of law or fact and may entertain a motion filed after a proposed complaint is filed but before
the medical review panel gives its opinion.

5
(App. at 11.)

Helms appeals, and BMH cross-appeals.

DISCUSSION AND DECISION

When reviewing a grant or denial of summary judgment our review is the same as it is

for the trial court: whether there is a genuine issue of material fact, and whether the moving

party is entitled to judgment as a matter of law. Omni Ins. Group v. Poage, 966 N.E.2d 750,

753 (Ind. Ct. App. 2012), trans. denied. Summary judgment should be granted only if the

evidence sanctioned by Indiana Trial Rule 56(C) shows there is no genuine issue of material

fact and the moving party deserves judgment as a matter of law. Id. All evidence is

construed in favor of the opposing party, and all doubts as to the existence of a material issue

are resolved against the moving party. Id.

1. Res Judicata Effect of Federal Court Decision

Helms learned the Clinic was not a division of BMH, but was a federally-supported

health care center, which meant the Clinic and its employees were federal employees and

immune from suit pursuant to the FTCA. Helms therefore brought an action in federal court

against the United States. The federal court granted summary judgment for the United States.

Adkins, 2011 WL 666713 at *5.

In granting summary judgment, the federal court said the “central question is whether

the statute of limitations on actions brought under the FTCA bars Plaintiffs’ claim against the

United States,” id. at *1, then noted any health center that receives federal funds

6
 may be deemed an employee of the federal government. See 42 U.S.C. §
233(g)(1)(A), (4). Likewise, the employees of such health centers will be
deemed federal employees. Id. As federal employees, both the federally
funded health center and its employees are protected under the [FTCA] for acts
in connection with medical or related functions committed within the scope of
their employment. Id. [The Clinic] was deemed an employee of the Public
Health Service as of June 1, 2003, and has continued to be covered by the
FTCA, without interruption, since that time. [Dkt. 56–2 at 2, ¶ 7.] Because
[the Clinic] and Dr. Rudicel are federal employees, they are protected by
sovereign immunity from claims of negligence in the provision of health care
services and are, therefore, immune from suit, except under the FTCA.

Id.

Helms then brought suit in state court. That court found the federal court order was

res judicata as to “claims of negligence related to Open Door Clinic and Dr. Rudicel’s

actions at the Clinic.” (App. at 11.) Res judicata serves to prevent repetitious litigation of

disputes that are essentially the same. Dawson v. Estate of Ott, 796 N.E.2d 1190, 1195 (Ind.

Ct. App. 2003). The doctrine of res judicata includes claim preclusion, which applies when

a final judgment on the merits has been rendered, and acts to bar a subsequent action on the

same claim between the same parties. Id. When claim preclusion applies, all matters that

were or might have been litigated are deemed conclusively decided by the judgment in the

prior action. Id. Claim preclusion applies when the following four factors are present: (1)

the former judgment was rendered by a court of competent jurisdiction; (2) the former

judgment was rendered on the merits; (3) the matter now at issue was, or could have been,

determined in the prior action; and (4) the controversy adjudicated in the former action was

between parties to the present suit or their privies. Id. Actions in state courts that attempt to

undermine federal court decisions amount to impermissible collateral attacks. Id. at 1196-97.

7
 As the federal court did not address the issue now before us -- whether BMH might be

liable for actions of its apparent agents – that decision does not bar Helms from pursuing her

action against BMH. BMH argues the federal court’s decision forecloses any action against

BMH based on actions by the Clinic and Dr. Rudicel because the FTCA is Helms’s exclusive

remedy and the only action that can be brought concerning the acts of the Doctor and Clinic

is against the United States. The FTCA provides:

The remedy against the United States provided by sections 1346(b) and 2672
of this title for injury or loss of property, or personal injury or death arising or
resulting from the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or employment is
exclusive of any other civil action or proceeding for money damages by reason
of the same subject matter against the employee whose act or omission gave
rise to the claim or against the estate of such employee. Any other civil action
or proceeding for money damages arising out of or relating to the same subject
matter against the employee or the employee’s estate is precluded without
regard to when the act or omission occurred.

28 U.S.C. § 2679(b)(1) (emphasis added). Because the FTCA is an exclusive remedy for

torts committed by federal employees acting within the scope of their employment, if

recovery is not available against the United States under § 2680, it is not available at all.

Brown v. Armstrong, 949 F.2d 1007, 1013 (8th Cir. 1991).

The references to FTCA exclusivity are explicitly to the employee of the government,

and the federal court found only that the Doctor and Clinic were federal employees. It did

not find BMH was a federal employee. While the FTCA precludes further actions against the

“employees” -- i.e., the Doctor and the Clinic, we decline to hold the FTCA precludes an

action against the employee’s apparent principal when that apparent principal has not been

8
adjudicated a government employee covered by the FTCA. See, e.g., Abrams v. Sinon, 205

N.W.2d 295, 298 (Mich. Ct. App. 1972), aff’d, 212 N.W.2d 14 (Mich. 1973) (while the

FTCA barred a direct suit against a government employee driver, it did not bar a separate

action against the owner of a motor vehicle negligently driven by the government employee).

The trial court’s determination the federal decision is res judicata as to claims of negligence

by the Clinic or by Dr. Rudicel while at the Clinic was error.

2. Apparent Agency

As this state court action against BMH is not precluded by the FTCA, we turn to the

question whether there is a genuine issue of fact as to whether Dr. Rudicel and the health care

providers who treated Helms at the Clinic were apparent agents of BMH. As there is such an

issue, summary judgment for BMH on the question whether it might have vicarious liability

for the acts of the Doctor and others at the Clinic was error.

A principal is liable for the acts of his agent that were committed within the scope of

the agent’s actual or apparent authority. Pollas v. Hardware Wholesalers, Inc., 663 N.E.2d

1188, 1190 (Ind. Ct. App. 1996), reh’g denied. Apparent authority refers to a third party’s

reasonable belief that the principal has authorized the acts of its agent; it arises from the

principal’s manifestations to a third party and not from the representations or acts of the

agent. Gallant Ins. Co. v. Isaac, 751 N.E.2d 672, 675 (Ind. 2001). The manifestations can

originate from direct or indirect communication, or from advertisements to the community.

Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 148 (Ind. 1999).

9
 In Sword, our Indiana Supreme Court expressly adopted, in the specific context of a

hospital setting, the formulation of apparent agency set forth in the Restatement (Second) of

Torts. Id. at 152. That section 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 as though the employer were supplying them himself or by his
servants.

Restatement (Second) of Torts § 429 (1965). 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 negligent conduct because of the

principal’s manifestations, then the principal may be held liable for that negligent conduct.

Sword, 714 N.E.2d at 149. Therefore, “a trier of fact must focus on the reasonableness of the

patient’s belief that the hospital or its employees were rendering health care.” Id. at 152.

The reasonableness of a patient’s belief about who was rendering service is

determined by considering the totality of the circumstances, including the actions or inactions

of the hospital and any special knowledge the patient may have had about the hospital’s

arrangements with its physicians. Id. 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
avoid liability by providing meaningful written notice to the patient,
acknowledged at the time of admission.

Id. (emphasis added).

10
 In Sword, our Indiana Supreme Court found issues of fact as to whether a doctor was

an apparent agent of the hospital. Nothing in the record indicated the hospital “did anything

to put Sword on notice that it was her physician, an independent contractor, who was

responsible for her medical care and not the hospital.” Id. at 152. Nor was this

a case 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, [the hospital] held itself out, through an extensive
advertising campaign, as a full-service hospital which specializes in obstetric
care.

Id. at 152-53.

The Sword Court noted counsel’s reference to a document titled “Condition of

Admission and Authorization for Treatment,” which counsel asserted informed Sword that

her physician was not an employee of the hospital and that the hospital was not liable for any

acts of the practicing physician. Id. at 152 n.16. The document was not in the record, but our

Supreme Court noted that, assuming the references were correct,

it is far from clear that this document would constitute sufficient notice of the
relationship between the hospital and the physician . . . . In fact, it is likely
insufficient notice if it is the sole source of notice and if plaintiff did not read
or sign that form until she arrived at the hospital in active labor.

Id.

Helms notes the evidence that a sign at the Clinic read “OPEN DOOR/BMH

HEALTH CENTER” and “CARDINAL HEALTH SYSTEMS, PARTNERS IN BILLING,”

(App. at 66), her medical records were labeled “Ball Memorial Hospital Obstetrical

11
History/Physical/Prenatal Record,” (id. at 79), her appointment reminders were from “Open

Door/BMH Health & Dental Center,” (id. at 77), a patient information handout said Dr.

Rudicel was “in charge of the day to day running of the OB clinic,” (id. at 72), the Clinic was

“part of the Medical Education program at Ball Memorial Hospital,” (id.), the residents who

saw Helms at the Clinic were in a “residency program through Cardinal Health Ball

Memorial Hospital,” (id. at 118), BMH paid the residents’ salaries, and BMH paid Dr.

Rudicel a teaching stipend for training the family practice residents. She believed the Clinic

was part of BMH and Dr. Rudicel and the residents were employed by BMH, and she

assumed Dr. Rudicel and the interns and residents who cared for her were providing the

services through BMH. All this, Helms argues, gives rise to a genuine issue of fact as to

whether she could have reasonably believed the Doctor and other health care providers at the

Clinic were acting on behalf of BMH.

BMH argues the designated evidence does not permit a finding of apparent agency.

Some of it -- such as the signage at the Clinic, statements on the Clinic’s medical records, the

appointment reminders the Clinic sent Helms, and a handout she received from the Clinic --

involves acts by the Clinic, not BMH. BMH correctly notes the apparent authority doctrine is

based on manifestations by the principal, not the agent, see id. at 148 (the manifestation must

be made by the principal to a third party), and argues Helms is relying on manifestations by

the Clinic.

But the Sword Court instructs us that manifestations sufficient to create an apparent

agency may also originate from “indirect communication” or from “advertisements to the

12
community,” id., and there were such advertisements and indirect communications in the

record before us. Advertisements to the community reflected the Clinic’s ties to BMH. The

Clinic’s name was Open Door/BMH Health Clinic, and the records of clinic patients were

maintained on BMH forms. These advertisements and “indirect communications” give rise

to a genuine issue whether the Clinic and its health care providers might have been apparent

agents of BMH.

Nor may we accept BMH’s argument Helms could not have reasonably believed the

Clinic was an agent of BMH because of the consent forms she signed. 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. Sword,

714 N.E.2d at 152. On multiple occasions Helms signed forms that said “many” of the

physicians and other health care providers, (e.g., App. at 187), who treat patients at Cardinal

Health System facilities are not employed by BMH, but are independent contractors who

have been “granted the privileges of using Cardinal Health System facilities to treat patients.”

(Id.)

A hospital generally will be able to avoid liability by providing meaningful written

notice to the patient, acknowledged at the time of admission. Sword, 714 N.E.2d at 152. As

in Sword, the consent forms Helms signed did not provide “meaningful” notice. The notice

referred only to “many” of the health care providers at the Clinic, “leaving the patient to

guess as to which ones are and which ones are not” hospital employees. (Helms Br. at 12.)

13
 BMH, relying on case law addressing adequate notice in other contexts, argues the

burden is not on BMH to show Helms knew Dr. Rudicel and the health care providers at the

Clinic were not BMH employees -- instead, it argues, the burden was on Helms to inquire

about their status. See, e.g., Ashland Pipeline Co. v. Indiana Bell Tel. Co., Inc., 505 N.E.2d

483, 487 (Ind. Ct. App. 1987) (“Whatever fairly puts a person on inquiry is sufficient notice,

where the means of knowledge are at hand; and if he omits to inquire, he is then chargeable

with all the facts which, by a proper inquiry, he might have ascertained.”), reh’g denied,

trans. denied.

That standard is inconsistent with our Supreme Court’s explicit language in Sword and

therefore cannot be the standard for “meaningful” notice in the case before us. Sword

instructs us 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.” 714 N.E.2d at 152 (emphasis added). The BMH consent forms

did not do that -- they told Helms only that there was a possibility her physician might not be

a BMH employee. As there is a genuine issue whether the Doctor and Clinic might have

been apparent agents of BMH, summary judgment for BMH was error.

3. Hospital’s Liability if Apparent Agents Have Immunity

The federal court held Dr. Rudicel and the Clinic were federal employees and immune

from suit under the FTCA. But that immunity, which was premised on the running of a

limitations period and not on the Doctor’s or Clinic’s liability for tortious acts, does not

14
extend to BMH. BMH might therefore be vicariously liable for the acts of its apparent agents

even if the agents are individually immune from suit.

We recently so held in Columbus Reg’l Hosp. v. Amburgey, 976 N.E.2d 709, 716 (Ind.

Ct. App. 2012), trans. pending. There, we determined a complaint against a hospital could

go forward under a theory of vicarious liability even though suit against the independent

contractor physicians whose acts were at issue was barred by a statute of limitations. Id.

Amburgey argued two independent contractor physicians were apparent agents of the

hospital. The hospital responded that the statute of limitations had run on any claims against

the doctors, and there was no basis for liability against the hospital without a basis for

liability against the doctors. We accepted an interlocutory appeal on this question:

Whether the trial court erred in finding that genuine issues of material fact
existed in medical malpractice complaint against the [Hospital] based, in part,
on a theory of ostensible agency liability for the alleged acts of two (2)
independent contractor physicians where the alleged ostensible agents of the
[Hospital] cannot be independently held liable because they have not been
named as defendants and the statute of limitations has run against them.

Id. at 713.

We determined an action against the hospital was not precluded:

[W]e turn to the issue of whether the expiration of the statute of limitations
regarding any claim against Dr. Xu or Dr. Harris forecloses Amburgey’s claim
against the Hospital. We observe that there is no designated evidence
suggesting that Amburgey ever brought a claim directly against Dr. Xu or Dr.
Harris that was dismissed on the basis of the running of the statute of
limitations. The designated evidence also does not reveal a judicial order
finding that Dr. Xu and Dr. Harris were not negligent. Further, Amburgey
filed the complaint against the Hospital prior to the running of the applicable
statute of limitations.
While Indiana has not addressed this specific issue, we observe that
some of our sister states have concluded that the running of a statute of
15
 limitations with respect to a physician does not preclude a complaint against a
hospital on a theory of vicarious liability and apparent authority. See Abshure
v. Methodist Healthcare–Memphis Hosps., 325 S.W.3d 98, 112 (Tenn. 2010)
(observing that the plaintiffs filed a proper vicarious liability claim against a
hospital before their claims against a doctor were extinguished by operation of
law and holding that the subsequent procedural bar of their claims against the
doctor did not prevent the plaintiffs from pursuing their timely filed vicarious
liability claim against the hospital); Kashishian v. Port, 167 Wis.2d 24, 481
N.W.2d 277, 286–287 (1992) (holding that the doctrine of apparent authority
could be a basis for a medical malpractice action against a hospital for the
negligent acts of independent contractors, that the dismissal of the independent
contractor based upon the failure to timely file a notice of claim was not a
determination of the physician’s negligence, and that such a dismissal was
appropriate despite the fact that the suit could be maintained against the
hospital), reconsideration denied; Pamperin v. Trinity Mem’l Hosp., 144
Wis.2d 188, 423 N.W.2d 848 (1988) (Steinmetz, J., dissenting) (noting that the
statute of limitations had run against the negligent doctors and they could not
be joined as defendants; the majority in Pamperin allowing the plaintiffs to
proceed with their lawsuit against the hospital).

Id. at 715-16 (emphasis added).

We acknowledge the decisions cited by BMH that hold, in other contexts, that a

principal cannot be vicariously liable if an action could not be maintained against the

tortfeasor agent.6 See, e.g., Comer-Marquardt v. A-1 Glassworks, LLC, 806 N.E.2d 883, 887

(Ind. Ct. App. 2004). Those decisions are distinguishable. For example, in Comer-

Marquardt we held:

[U]nder the doctrine of respondeat superior, a master or principal is
chargeable with, and liable for, any tortious act committed by his servant or
agent while such servant or agent is acting in the course of his employment and
6
BMH also argues Amburgey can be distinguished. We noted in Amburgey there was no designated evidence
that Amburgey ever brought a claim directly against the independent contractor doctors that was dismissed on
statute of limitations grounds, there was no judicial order finding the doctors were not negligent, and
Amburgey sued the Hospital before the applicable statute of limitations had run. Those factual differences do
not require a different result in the case before us. Helms could not have brought a claim directly against the
Doctor and Clinic because they were immune under the FTCA.

16
 in the line of his duty. Conversely, if the servant or agent is released of
liability, no liability can be imputed to the principal. Thus, it is axiomatic that
a judgment in favor of an employee requires judgment in favor of his employer
when the employer’s liability is predicated solely upon the acts of said
employee.

Id. (citations and internal quotation omitted). In the case before us, there was no judgment in

favor of an employee as to liability as there was in Comer-Marquardt; there could not have

been, as Dr. Rudicel and Clinic had federal immunity.

Similarly, in Grzan v. Charter Hosp. of Nw. Indiana, 702 N.E.2d 786, 792 (Ind. Ct.

App. 1998), the agent, a mental health counselor, was released from liability when he won

summary judgment in a malpractice suit against him. Therefore, no negligence could be

imputed to the principal, a hospital for which the counselor worked. We said: “Because we

have concluded that the trial court properly entered summary judgment in favor of [a mental

health counselor] on Grzan’s claims of malpractice and negligence, Charter [Hospital]

cannot be held liable under the doctrine of respondeat superior.” Id. (emphasis added).

As the suit against the Doctor and Clinic in the case before us was, as in Amburgey,

barred by a statute of limitations and not by a judgment regarding their allegedly tortious acts,

we find Amburgey controls. Summary judgment for BMH premised on the immunity of its

alleged apparent agents was therefore error.

4. Cross-Appeal Issue -- The Hospital’s Vicarious Liability

The trial court correctly found BMH might be vicariously liable for acts by Dr.

Rudicel or Nurse Practitioner Steinbarger while at the hospital: “There is a fact question

whether the consent form given to Plaintiff at the Hospital was adequate notice that [the

17
Doctor and nurse] were not Hospital employees or agents” when they treated Helms at the

emergency room. (App. at 11.) As we have explained above, there is a genuine issue

whether the BMH consent form provided “meaningful” notice in light of the Sword

requirement the hospital tell the patient “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.” 714 N.E.2d at 152 (emphasis added). BMH’s notice that

“many” providers are independent contractors does not appear to satisfy that requirement,

and the trial court correctly found there was a genuine issue as to the adequacy of notice.

CONCLUSION

As the federal decision is not res judicata as to BMH’s potential liability as the Doctor

and Clinic’s apparent principal and there is a fact question as to such apparent agency,

summary judgment for BMH was error. The trial court correctly found BMH might be

vicariously liable for any act of Dr. Rudicel or Nurse Practitioner Steinbarger at BMH. We

accordingly affirm in part, reverse in part, and remand.

Affirmed in part, reversed in part, and remanded.

ROBB, C.J., and PYLE, J., concur.

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