{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 agency. 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 employee 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 evidence would have been highly probative on the third element and, possibly, could have been probative on *735the first element as well. Thus, the trial court necessarily drew inferences from the circumstantial evidence presented at trial in order to determine how Dr. Port acted and the extent to which Ms. Kashishian relied on his actions and those of Mt. Sinai. The majority acknowledges that the trial court's factual findings and legal conclusions are intertwined and are entitled to substantial weight. See majority op. at 731. Although the evidence could have led the trial court to a different conclusion on the issue of apparent agency, I am not convinced that the trial court misapplied the law when it concluded that the plaintiff "failed to produce sufficient evidence" to satisfy the first and third elements.
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. *736Sinai's liability because Dr. Al-Bitar and Dr. Port jointly treated Ms. Kashishian. See Fehrman v. Smirl, 25 Wis. 2d 645, 653-656, 131 N.W.2d 314, 318-319 (1964).