concurring in the result.
I concur in the majority opinion insofar as it holds that the trial court erred in granting summary judgment; however, I cannot agree with much of the legal analysis by which it reaches its holding.
The general duty owed by the appellee to the appellant was to exercise that degree of care and skill ordinarily expected of reasonable and prudent hospitals under similar circumstances. See Rogers v. Kasdan, Ky., 612 S.W.2d 133 (1981). The record before us presents a genuine issue of fact as to whether that duty was breached and as a result the appellant injured. For example, the appellee’s written policy is evidence bearing on the standard of care owed by it to a patient in administration of anesthetics. If the appellee had actual or constructive knowledge that its policy was not being adhered to, then it might well be held accountable in tort. The role of an acting chairman of the department of anesthesiology is unclear, but if it was such as to render Dr. Fossett legally the agent of the hospital, then his knowledge could be imputed to the hospital. See United Fuel Gas Co. v. Jude, Ky., 355 S.W.2d 664 (1962); Fridena v. Evans, 127 Ariz. 516, 622 P.2d 463, 12 A.L.R.4th 46 (1980); Tucson Medical Center, Inc. v. Misevch, 113 Ariz. 34, 545 P.2d 958 (1976).
I cannot agree with the majority’s holding with respect to apparent authority. What the majority finds to be axiomatic strikes me as unsound both as a matter of fact and as a matter of law. Under the majority’s analysis, a hospital, which has little control over most of the treatment decisions of an independent, nonemployee professional in the healing arts nevertheless would be held liable for all of those decisions, even where the hospital has not held out that person to be its employee. This is indeed a radical departure from established principles of malpractice liability.