[1] [EDITORS' NOTE: THIS OPINION IS SUBJECT TO MODIFICATION OR TRANSFER TO THE SUPREME COURT.
[2] ORDER [3] Plaintiffs appeal from the trial court's grant of summary judgment in their action alleging medical malpractice. No error of law appears and an opinion would have no precedential value. However, the parties have been furnished with a memorandum, for their use only, explaining the reasons for this decision.
[4] The judgment of the trial court is affirmed. Rule 84.16(b).
[5] MEMORANDUM SUPPLEMENTING ORDER[6] AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b) [7] The memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgment.
[8] THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OFTHIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BEREPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THISCOURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTIONTO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THISMEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
[9] Plaintiffs, James Williams and Deborah Williams, appeal from the trial court's judgment sustaining defendants' motion for summary judgment in this medical malpractice action.1 We affirm.
[10] On February 15, 1992, James Williams was assaulted. He suffered a fractured jaw and other facial injuries. He was taken to Metropolitan Medical Center's ("hospital") emergency room and admitted to the hospital. The following morning in his hospital room Mr. Williams met Dr. Paul Burk. Dr. Burk, an orofacial plastic surgeon, was on staff at the hospital and was the "on call" surgeon for Mr. Williams. Dr. Burk recommended a surgical procedure that involved reducing the fracture and inserting metal plates and screws. Mr. Williams agreed to the procedure which Dr. Burk performed at the hospital. The hospital provided the surgical suite, equipment, instruments and support staff for the surgery.
[11] Plaintiffs brought an action alleging Dr. Burk negligently performed the surgery thereby requiring additional surgeries to repair the damage. Defendants filed a motion for summary judgment asserting that Dr. Burk was not an employee, agent or servant of defendants. The trial court sustained defendants' motion. Plaintiffs and Dr. Burk thereafter entered into a stipulation of dismissal with prejudice of plaintiffs' claim against Dr. Burk. This appeal followed.
[12] When considering appeals from summary judgment, we review the record in the light most favorable to the non-movant, and give that party the benefit of all reasonable inferences. ITTCommercial Finance Corp. v. Mid-America Marine Supply Corp.,854 S.W.2d 371, 376 (Mo. banc 1993). Appellate review is essentially de novo. Id.
[13] On appeal, plaintiffs argue there is a genuine issue of material fact regarding whether defendants are vicariously liable for the acts of Dr. Burk. Plaintiffs claim that Dr. Burk was the ostensible agent of defendants.
[14] Ostensible agency is a type of agency based on apparent authority. Porter v. Sisters of St. Mary, 756 F.2d 669, 671 (8th Cir. 1985). Apparent authority is defined by the Restatement (Second) of Agency § 8 (1958) as "the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other's manifestations to such third persons." Apparent authority results from a manifestation to a third person by the supposed principal that another is its agent.Wilson v. St. Louis Area Council, Boy Scouts ofAmerica, 845 S.W.2d 568, 571 (Mo. App. 1992). Apparent authority arises from the acts of the principal and not from the acts of the agent; agents cannot create their own authority.Id.
[15] By asserting ostensible agency, plaintiffs appear to rely on a theory of vicarious liability provided in Section 267 of the Restatement (Second) of Agency. This section provides:
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.
[16] In Porter, the plaintiff patient obtained verdicts against St. Joseph Hospital and a surgeon who was on the medical staff of the defendant hospital. Porter, 756 F.2d at 670. The court, in affirming the grant of judgment notwithstanding the verdict for St. Joseph Hospital, analyzed whether the plaintiff made a submissible case under § 267 and a theory of ostensible agency.2 The court first considered whether certain evidence constituted representations of agency by St. Joseph Hospital. The court considered evidence that hospital personnel obtained the consent for the surgeon to treat the plaintiff, similarity of hospital dress, the occasional use of name tags by personnel and the medical staff and a statement made to the patient by an emergency room doctor employed by the hospital that the surgeon was called and "he's our best person for the job." Id. at 673. After reviewing this evidence, the court held that the plaintiff failed to supply the proof necessary to establish apparent authority.Id. at 673-74. The court then stated that "[e]ven more importantly, however, the representations must cause the reliance upon the care or skill of an apparent agent."Id. at 674. The court found that the plaintiff's decision to permit the surgeon to perform the operation was made in a non-emergency setting after consultation with the surgeon and "considerable thought and pondering" by the plaintiff.Id.
[17] In the present case, James Williams spoke with Dr. Burk several hours after being admitted to the hospital. He stated in his deposition that after speaking with Dr. Burk he spoke with his sister, a dental technician, about the surgery. Although Mr. Williams stated that his sister suggested he did not need the surgery, he decided to leave "it in the doctor's hands." Similar to Porter, the record here, under the applicable standard of review, fails to reveal that James Williams agreed to the surgery because he believed Dr. Burk was hospital's agent. "The mere fact that acts are done by one whom the injured party believes to be the defendant's servant is not sufficient to cause the apparent master to be liable. There must be such reliance upon the manifestation as exposes the plaintiff to the negligent conduct." Restatement (Second) of Agency § 267 comment a (1958). Additionally, hospital's referral of Dr. Burk is less persuasive of a representation than the plaintiff's evidence inPorter. Plaintiffs' contention of ostensible agency fails.
[18] Plaintiffs attempt to distinguish Porter by contending that Dr. Burk was under the direct control of the defendants. Plaintiffs' contention of direct control constitutes a different theory than one of ostensible agency.Porter, 756 F.2d at 672-73. To establish an agency relationship the principal must consent, expressly or impliedly, to the agent acting on the principal's behalf and the agent must be subject to the principal's control. Wray v. Samuel U.Rodgers' Community Health Center, Inc., 901 S.W.2d 167, 170 (Mo. App. 1995). "Where a person actively participates as by expressly ordering or directing the act which proves to be negligent or wrongful, such person is liable to a third person damaged thereby even though the relation of employer and employee does not exist between the one who directs the act and the one who performs it." Campbell v. Preston, 379 S.W.2d 557, 561-62 (Mo. 1964); See Adams v. Children's Mercy Hosp.,848 S.W.2d 535, 540-41 (Mo. App. 1993).
[19] Plaintiffs contend defendants' direct control of Dr. Burk is demonstrated by: defendants requiring Dr. Burk to use their equipment and employees; defendants providing the medical record forms; defendants' review process for staff physicians and power to suspend their privileges; defendants and Dr. Burk receiving pecuniary benefits from their association; defendants requiring Dr. Burk to comply with defendants' procedural dictates to schedule and perform surgeries; and Dr. Burk's ability to admit patients.3
[20] Whether an agency relationship is established depends on the facts and circumstances of each particular case. The facts relied on by plaintiffs, taken as true, are necessarily attendant with a physician being on staff. Plaintiffs concede that simply being on staff is not sufficient to create agency. The facts simply fail to establish Dr. Burk was subject to defendants' control and therefore that Dr. Burk was the agent of defendants.
[21] Plaintiffs reliance on Adams is misplaced. In that case, there was evidence that, among other things, the defendant hospital had a right to control the physician's "conduct with regard to medical care." Adams, 848 S.W.2d at 540. The record here fails to make similar demonstration.
[22] Plaintiffs also suggest that Dr. Burk was an employee of the hospital. This court has held hospitals vicariously liable for physicians' acts when they are employees of the hospitals.Keller v. Missouri Baptist Hosp., 800 S.W.2d 35, 37 (Mo. App. 1990). The Restatement (Second) of Agency § 220(1) defines a servant as "a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control."
[23] In Keller, the plaintiff appealed the summary judgment granted Spectrum Emergency Care, Inc. in a medical malpractice action. Spectrum contracted with Missouri Baptist Hospital to provide it with emergency room physicians. Spectrum and the physician who allegedly was negligent had entered into an "Independent Contractor Physician Agreement."
[24] This court found the case presented was analogous to the situation where a hospital directly employs physicians.Id. at 38. The case was reversed and remanded because there was sufficient evidence to raise a question of material fact regarding whether the physician was Spectrum's employee, thereby rendering it vicariously liable. Id. at 35-36. The following evidence supported a finding of an employer-employee relationship between Spectrum and the physician: Spectrum maintained some control over the physician by requiring him to respond to in-house codes and requests of Missouri Baptist's staff to assess critical in-house patients; the contract provided that physician would not compete with Spectrum by working for another hospital which contracted with Spectrum; the parties contemplated a long term relationship because the contract was for one year and renewed automatically; Spectrum paid the physician a fixed hourly rate regardless of the number of patients he treated and in return for his salary the physician had to work forty-eight hours per week; Spectrum retained the right to terminate the physician; and Spectrum undertook to insure the physician for professional liability.Id. at 38-39 (analyzing factors provided in the Restatement (Second) of Agency § 220(2)(1958)).
[25] The present case is distinguishable from Keller. Here, defendants did not pay Dr. Burk's salary. Dr. Burk maintains a private office and bills patients directly for his services. Defendants do not pay Dr. Burk's malpractice insurance. Although Dr. Burk is on call at certain times, he is not required to work a set number of hours. Dr. Burk is on staff of at least six other hospitals. Dr. Burk was not required to treat any patients other than his own. Dr. Burk was not an employee of defendants. See Wray, 901 S.W.2d at 170.
[26] Plaintiffs' points are denied.
[27] The judgment of the trial court is affirmed.