Linda Beard v. James William Branson

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 16, 2016 Session

LINDA BEARD V. JAMES WILLIAM BRANSON ET AL.

Appeal from the Circuit Court for Houston County
No. 1368 Robert E. Burch, Judge

No. M2014-01770-COA-R3-CV – Filed November 8, 2017

This appeal is before the court on remand from the Supreme Court for our consideration
of two issues that were not resolved by the Supreme Court in Beard v. Branson, No.
M2014-01770-SC-R11-CV, __ S.W.3d __, 2017 WL 3725519 (Tenn. Aug. 30, 2017).
This is a medical malpractice, wrongful death action in which Plaintiff seeks to hold
Trinity Hospital, LLC (“Trinity”) and James William Branson, M.D. (“Dr. Branson”),
liable for the wrongful death of Ruth Hartley on September 29, 2004. Plaintiff alleged
that Mrs. Hartley died because of delay in treatment of a bowel perforation she developed
as a complication of colon surgery performed by Dr. Branson. In a partial summary
judgment ruling, the trial court determined that a non-party, Stanley Anderson, M.D.
(“Dr. Anderson”), the radiologist with whom Trinity contracted to provide services to its
patients, was an apparent agent of Trinity and that Trinity was vicariously liable for any
negligent acts or omissions of Dr. Anderson. Following a trial, the jury found in favor of
Plaintiff and awarded damages in the amount of $750,000.00, allocating 50% of the fault
for Mrs. Hartley’s death to Trinity, 10% to Dr. Anderson, and 40% to Dr. Branson. The
two issues we must consider are: (1) whether the trial court erred in granting partial
summary judgment to Plaintiff by finding that Dr. Anderson was the apparent agent of
Trinity; and (2) whether the trial court erred in assessing discretionary costs in the
amount of $68,945.85 against Trinity. Finding no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT, JR., P.J., M.S. delivered the opinion of the Court, in which ANDY D.
BENNETT and RICHARD H. DINKINS, JJ., joined.

David L. Johnson, Nashville, Tennessee; James T. McColgan, III and Sherry S.
Fernandez, Cordova, Tennessee, for the appellant, Trinity Hospital, LLC.

Philip N. Elbert and James G. Thomas, Nashville, Tennessee, for the appellee, Linda
Beard.
 OPINION

On September 13, 2004, Ruth Hartley (“Mrs. Hartley”) was admitted to Trinity
Hospital, LLC (“Trinity”) to undergo colon surgery to be performed by James William
Branson, M.D. (“Dr. Branson”). Following the surgery, Mrs. Hartley developed
complications, including an intestinal obstruction, that required her to remain hospitalized
longer than expected. On September 26, 2004, the nursing staff charted that Mrs.
Hartley’s incision site showed drainage. The following day, September 27, Dr. Branson
ordered an x-ray and a CT scan of Ms. Hartley’s abdomen and pelvis. Stanley Anderson,
M.D. (“Dr. Anderson”), a private radiologist whose practice group was under contract
with Trinity, reviewed the CT scan and reported that it indicated the possibility of a
mechanical bowel obstruction. Dr. Branson read the report, disagreed with Dr.
Anderson’s conclusion, and took no additional action at that time.

On September 28, as Mrs. Hartley’s condition continued to deteriorate, the nursing
staff noted purulent drainage from the incision site and complaints of pain. At 1:55 a.m.
on September 29, the nursing staff notified Dr. Branson that Mrs. Hartley’s condition had
worsened. Four hours later, at 5:50 a.m., the nursing staff notified Dr. Branson that fecal
matter was leaking from the wound. Based on these reports, Dr. Branson ordered that
Mrs. Hartley be immediately transferred to Centennial Medical Center (“Centennial”) in
Nashville. Due to the seriousness of her condition, she was transported by helicopter.
When she arrived at Centennial, medical staff determined that Mrs. Hartley was in septic
shock, which necessitated emergency surgery. While undergoing surgery, Mrs. Hartley
went into cardiac arrest and was pronounced dead on September 29, 2004.

On September 12, 2005, Denver Hartley (“Plaintiff”), the surviving spouse,
commenced this action by filing a pro se complaint against Trinity and against Dr.
Branson to recover damages for the wrongful death of his wife.1 The complaint asserted
that the defendants negligently failed to diagnose and treat Mrs. Hartley’s condition and it
sought damages for Mrs. Hartley’s pain and suffering, the economic value of her life, loss
of consortium, funeral expenses, and other damages incurred. On February 15, 2006,

1
As will be discussed later, Mr. Hartley was illiterate, and although he signed the pro se
complaint, he did not author it. Attorney, Philip N. Elbert prepared the complaint. As explained by Mr.
Elbert in the appellee’s brief, Mr. Hartley filed the complaint pro se to afford counsel adequate time to
perform an investigation before signing any pleadings, as contemplated by Tennessee Rule of
Professional Conduct 5.5. On February 15, 2006, Mr. Elbert filed a formal notice of appearance on behalf
of Mr. Hartley and has remained counsel ever since. On December 23, 2008, Mr. Hartley passed away. A
suggestion of death was filed, and his daughter, Linda Beard, was substituted as plaintiff, pursuant to
Tenn. R. Civ. P. 25.01(1), by agreed order on March 31, 2009. Throughout this opinion, we will refer to
Mr. Hartley and Ms. Beard interchangeably as “Plaintiff.”

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attorney Philip N. Elbert filed a formal notice of appearance on behalf of Plaintiff and
subsequently filed an amended complaint.

In the interim, on November 1, 2005, the defendants filed separate motions to
dismiss on the ground the statute of limitations had expired. They contended that the pro
se complaint was a nullity because Mr. Hartley, who was not a licensed attorney,
attempted to assert Mrs. Hartley’s wrongful death claims in a representative capacity.
Thereafter, the defendants filed motions for summary judgment on the same grounds. The
trial court denied the motions, the case proceeded to trial, and judgment was rendered in
favor of Plaintiff.

In the appeal that followed, this court reversed the trial court, finding that the pro
se complaint was a nullity and that the action was time barred. See Beard v. Branson, No.
M2014-01770-COA-R3-CV, 2016 WL 1292904 (Tenn. Ct. App. Mar. 31, 2016), opinion
supplemented on denial of reh’g, No. M2014-01770-COA-R3-CV, 2016 WL 1705290
(Tenn. Ct. App. Apr. 26, 2016). Plaintiff appealed, and the Supreme Court held that the
action was timely. Beard v. Branson, No. M2014-01770-SC-R11-CV, __ S.W.3d __,
2017 WL 3725519, at *14 (Tenn. Aug. 30, 2017).

The Court reasoned that since the decedent’s right of action passed to the
surviving spouse pursuant to Tenn. Code Ann. § 20-5-106(a), Plaintiff, as the surviving
spouse, acted on his own behalf and for his own benefit pursuant to his right of self-
representation when he filed his complaint. Id. Consequently, Plaintiff commenced the
action within the statute of limitations period. Id. Based on this determination, the
Supreme Court reversed our decision and remanded the case for this court to rule on the
remaining issues. Id.

Before Plaintiff commenced this action, he discovered that a CT scan of Mrs.
Hartley’s abdomen and pelvis had been taken at Trinity Hospital on September 27, 2004,
two days prior to her death. On July 26, 2005, Plaintiff, through counsel, requested from
Trinity copies of all records, specifically including the CT scan. On August 2, 2005,
Trinity responded by stating that it could not locate the CT scan. Subsequently, Plaintiff
requested a copy of the CT scan from Dr. Branson, Highland Radiology Group (the
practice group with which Trinity contracted to provide radiological services) and
Centennial, where Mrs. Hartley had been transferred by helicopter for further treatment.
None had a copy of the scan.2 When Trinity finally produced a copy of the CT scan

2
On July 26, 2006, Trinity represented that the CT scan had been sent to Centennial Medical
Center along with Mrs. Hartley when she was transferred. Plaintiff again requested the CT scan from
Trinity in a March 1, 2006, Request for Production of Documents. In its response, Trinity stated that the
CT scan was missing because it had been sent with Mrs. Hartley to Centennial Medical Center. Plaintiff
requested that Trinity download another copy of the scan from the original data files on the server for its
radiology department. According to Trinity, those files had been deleted. Approximately three years after
(continued…)
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approximately three years later, Plaintiff’s experts reviewed it and discovered that Dr.
Anderson failed to note and report evidence of free air in Mrs. Hartley’s abdomen,
indicative of a bowel perforation. With this information, Plaintiff’s experts could assess
the extent of the dilatation of bowel referenced in the radiology report and critique the
radiologist’s failure to contact Mrs. Hartley’s surgeon directly to discuss it.

As a result of Trinity’s failure to produce the CT scan and Dr. Anderson’s notes
for approximately three years, Plaintiff was foreclosed from adding Dr. Anderson as a
defendant. As a consequence, Plaintiff moved to estop Trinity from denying vicarious
liability for Dr. Anderson’s negligence to prevent any prejudice resulting from the delay.
Additionally, Plaintiff moved for partial summary judgment on the issue of Dr.
Anderson’s apparent agency.

The trial court found that the undisputed material facts admitted by Trinity
sufficiently established the elements of apparent agency. Based on this determination, the
trial court granted Plaintiff’s motion for partial summary judgment and held that, as a
matter of law, Dr. Anderson acted as Trinity’s apparent agent. The trial court reaffirmed
its ruling at the close of Trinity’s proof at trial and instructed the jury as follows:

Dr. Anderson acted as an agent of Defendant Trinity Hospital in connection
with the radiology service he provided. It is necessary that you determine
whether Dr. Anderson was at fault and determine the percentage of fault, if
any, chargeable to him. Because Dr. Anderson acted as an agent of
Defendant Trinity Hospital, the percentage of fault you assign to Dr.
Anderson will be the responsibility of Defendant Trinity Hospital.

At the conclusion of a two-week trial, the jury found in favor of Plaintiff and
awarded damages of $750,000.00, allocating 50% of the fault for Mrs. Hartley’s death to
Trinity, 10% to Dr. Anderson, and 40% to Dr. Branson. Trinity was held vicariously
liable for the 10% of the fault apportioned to Dr. Anderson.

The trial court entered judgment on this award on August 8, 2014. Thereafter, the
trial court denied Trinity’s motion for a directed verdict or a new trial and awarded
discretionary costs to Plaintiff in the amount of $68,945.85. Trinity timely appealed. Dr.
Branson did not appeal.

Trinity raised three issues on appeal: (1) whether the trial court erred by failing to
dismiss the complaint as time-barred; (2) whether the trial court erred by awarding partial
summary judgment to Plaintiff by finding that Dr. Anderson was Trinity’s apparent

it was initially requested by Plaintiff’s counsel, Trinity produced the CD, informing the court that it had
been misfiled in an adjacent file.

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agent; and (3) whether the trial court’s award of discretionary costs against Trinity should
be set aside. Because the Supreme Court decided the first issue, we limit our analysis to
the two remaining issues.

STANDARD OF REVIEW

We review a trial court’s summary judgment adjudications de novo without a
presumption of correctness. Rye v. Women’s Care Center of Memphis, MPLLC, 477
S.W.3d 235, 250 (Tenn. 2015). In doing so, we make a fresh determination of whether
the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id. (citing Estate of Brown,
403 S.W.3d 193, 198 (Tenn. 2013)).

Summary judgment is appropriate when the “pleadings, depositions, answers to
interrogatories, and admission on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Tenn. R. Civ. P. 56.04; see also Martin v. Norfolk S. Ry.
Co., 271 S.W.3d 76, 83 (Tenn. 2008). The party moving for summary judgment bears the
burden of demonstrating both that no genuine dispute of material fact exists and that it is
entitled to a judgment as a matter of law. Martin, 271 S.W.3d at 83.

When the moving party does not bear the burden of proof at trial, the moving party
may satisfy its burden of production either: (1) by affirmatively negating an essential
element of the nonmoving party’s claim; or (2) by demonstrating that the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish the
nonmoving party’s claim or defense. Rye, 477 S.W.3d at 250.

Awarding discretionary costs in accordance with Tenn. R. Civ. P. 54.04(2) is
within the trial court’s reasonable discretion. Massachusetts Mut. Life Ins. Co. v.
Jefferson, 104 S.W.3d 13, 35 (Tenn. Ct. App. 2002) (citations omitted). Nevertheless, a
trial court’s decision to award or deny discretionary costs should be guided by Tenn. R.
Civ. P. 54.04(2). Id.

Because these decisions are discretionary, we are generally disinclined to second-
guess a trial court’s decision unless the trial court has abused its discretion. Id. (citations
omitted). The “abuse of discretion” standard of review calls for less intense appellate
review and, therefore, less likelihood that the trial court’s decision will be reversed. Id.
(citing State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn.Ct.App.2000); White v.
Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn. Ct. App. 1999)). Nevertheless,
discretionary decisions must take the applicable law and the relevant facts into account.
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citations omitted). An
abuse of discretion occurs when a court strays beyond the applicable legal standards or
when it fails to properly consider the factors customarily used to guide the particular
discretionary decision. Id. (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)).

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 To avoid result-oriented decisions or seemingly irreconcilable precedents,
reviewing courts should review a lower court’s discretionary decision to
determine (1) whether the factual basis for the decision is properly
supported by evidence in the record, (2) whether the lower court properly
identified and applied the most appropriate legal principles applicable to the
decision, and (3) whether the lower court’s decision was within the range of
acceptable alternative dispositions. Flautt & Mann v. Council of Memphis,
285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008) (quoting BIF, a Div. of
Gen. Signal Controls, Inc. v. Service Constr. Co., No. 87-136–II, 1988 WL
72409, at *3 (Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11
application filed)). When called upon to review a lower court’s
discretionary decision, the reviewing court should review the underlying
factual findings using the preponderance of the evidence standard contained
in Tenn. R. App. P. 13(d) and should review the lower court’s legal
determinations de novo without any presumption of correctness. Johnson v.
Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn. Ct. App. 2004); Boyd v.
Comdata Network, Inc., 88 S.W.3d at 212.

Lee Med., Inc., 312 S.W.3d at 524-25.

ANALYSIS

I. VICARIOUS LIABILITY FOR ACTS AND OMISSIONS OF DR. ANDERSON

Trinity contends the trial court erroneously granted Plaintiff’s motion for partial
summary judgment by holding that Dr. Anderson was Trinity’s agent, and consequently,
instructing the jury as follows:

Dr. Anderson acted as an agent of Defendant Trinity Hospital in connection
with the radiology service he provided. It is necessary that you determine
whether Dr. Anderson was at fault and determine the percentage of fault, if
any, chargeable to him. Because Dr. Anderson acted as an agent of
Defendant Trinity Hospital, the percentage of fault you assign to Dr.
Anderson will be the responsibility of Defendant Trinity Hospital.

Trinity relies in part on the undisputed fact that Dr. Anderson was not Trinity’s
employee and, instead, his radiology medical practice group had a contract to perform
medical imaging studies for Trinity. It also contends that Plaintiff failed to satisfy the
three-part agency test set forth in Boren v. Weeks, 251 S.W.3d 426, 436 (Tenn. 2008),
which requires proof that:

(1) the hospital held itself out to the public as providing medical services;

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 (2) the plaintiff looked to the hospital rather than to the individual physician
to perform those services; and
(3) the patient accepted those services in the reasonable belief that the
services were provided by the hospital or a hospital employee.

Trinity admits it held itself out to the public as providing medical services; thus,
the first element is established. However, Trinity contends that Plaintiff offered no
evidence that would prove either the second or the third Boren element. Specifically,
Trinity insists there is no evidence to show whether Mr. and Mrs. Hartley looked to
Trinity to perform the radiological services at issue, or whether they believed that the
hospital or a hospital employee provided the services. In this regard, Trinity relies on the
fact that Mr. and Mrs. Hartley died before either of them could testify in a deposition or
otherwise. As Trinity states in its brief:

Given the complete lack of evidence concerning whether Mr. and Mrs.
Hartley were looking to Trinity to provide the services at issue, it was
impossible for Plaintiff to meet her burden of establishing the second Boren
factor, and this is especially true given that all reasonable inferences were
required to be made in favor of Trinity.

Plaintiff, who also relies on Boren, counters by insisting that the undisputed
material facts establish all three essential elements. She correctly states that Trinity
admitted it held itself out to the public as a provider of medical services, including
radiological services. As for the second element, Plaintiff contends that the undisputed
facts established that “Mrs. Hartley looked to Trinity to provide radiological services, and
that those services were provided under circumstances that would cause any reasonable
patient to believe the hospital or its employee was providing them,” and that Trinity
presented no facts to dispute her reliance on Trinity. As for the third element, Plaintiff
contends Trinity failed to provide meaningful notice that the hospital disclaimed liability
for physician negligence. As a consequence, Plaintiff insists that partial summary
judgment on the apparent agency issue is warranted.

A. Patient’s Belief as to the Provider of Service

The gravamen of apparent agency is conduct of the principal that would create the
impression in a reasonable person that services are provided by the defendant or a servant
or employee of the defendant. Id. at 433. Plaintiff insists that Trinity’s conduct would
have created in any reasonable person the objectively reasonable belief that the hospital
provided the radiological services Mrs. Hartley received. Plaintiff also insists that direct
evidence of a patient’s subjective belief is not necessary.

“Apparent agency is established through the acts of the principal rather than those
of the agent or through the perception of a third party.” Id. When the actions or inactions

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of a hospital create the impression that services are being rendered by the hospital or its
servants, “a hospital will be deemed to have held itself out as the provider of care unless
it gives notice to the patient.” Id. at 434 (quoting Sword v. NKC Hosps., Inc. 714 N.E.2d
142, 152 (Ind. 1999)). Tennessee courts recognize that patients rely on hospitals, not
unknown third parties hired by hospitals, to provide services like diagnostic imaging. See
id. at 436. As discussed in Boren and in White v. Methodist Hosp. S., 844 S.W.2d 642
(Tenn. Ct. App. 1992), a party may prove apparent agency “despite the absence of direct
evidence of the patient’s reliance on the alleged apparent agency relationship.” Boren,
251 S.W.2d at 436. When the hospital’s actions create an objectively reasonable belief
that the hospital itself is offering services, “a court may infer that the patient reasonably
relied on the health care provider’s apparent authority to act for the hospital.” White, 844
S.W.2d at 647.

Trinity insists that Plaintiff never showed that Mrs. Hartley subjectively believed
that Dr. Anderson was employed by Trinity. For this reason alone, Trinity contends the
inquiry should have ended, and the trial court should have denied Plaintiff’s motion for
partial summary judgment. Conversely, Plaintiff insists it offered sufficient evidence to
establish that Mrs. Hartley looked to Trinity, not to Dr. Anderson, to perform her
radiological services, and there was no evidence to establish that the issue of apparent
agency could have “reasonably” been resolved in favor of Trinity at trial.

Plaintiff relies, in part, on our decisions in Boren and Edmonds v. Chamberlain
Memorial Hospital, 629 S.W.2d 28 (Tenn. Ct. App. 1981). In Edmonds, 629 S.W.2d at
29, an emergency room physician treated the decedent, and the decedent died after being
sent home. The plaintiff sued the hospital for the physician’s negligence. Id. The trial
court granted summary judgment to the hospital on the issue of agency on the grounds
that the physician was an independent contractor. Id. On appeal, we reversed. Id. at 32.

The relevant facts from Edmonds, as recounted in Boren, are as follows:

[T]he emergency room operated in conjunction with the rest of the hospital;
the hospital required all of the physicians with staff privileges to work in
the emergency room on a rotating basis, treating members of the public
who came to the hospital for emergency care; and all emergency treatment
took place on the hospital’s premises and utilized the hospital’s supporting
personnel and equipment. The court also relied on the fact that “[t]he
patient does not know or select the physician but relies upon the hospital
for providing the physician.”

Boren, 251 S.W.3d at 435 (citing Edmonds, 629 S.W.2d at 32).

Here, Plaintiff insists that numerous relevant facts are “identical to Edmonds with
respect to all the salient facts that the Boren Court highlighted:”

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 The radiology department at Trinity “operated in conjunction with the rest
of the hospital.”

The radiologists reading Trinity Hospital CT scans were required to work
“on a rotating basis, treating members of the public who came to the
hospital.”

All actual treatment, such as preparation for the CT scan, education about
the CT scan, and the CT scan itself, “took place on the hospital’s premises
and utilized the hospital’s supporting personnel and equipment.”

At Trinity Hospital, patients in general and Mrs. Hartley in particular did
“not know or select the physician but relie[d] upon the hospital for
providing the physician.”

Further, as this court discussed in White, 844 S.W.2d at 647, the inference of
apparent agency is most likely to arise “where a hospital offers a service” and “the patient
has no part in choosing the individual who will perform the service.” In the case at bar,
the undisputed facts reveal that Mrs. Hartley relied on Trinity to provide her radiology
services because there is no evidence she had any knowledge of nor played any part in
choosing Dr. Anderson, “the individual who . . . perform[ed] the service.” Id.

Plaintiff also relies on the deposition of Dr. Branson:

Q. Do you know how the radiologist that did the CT scan pursuant to
your order when Ms. Hartley was in the hospital in September of
2004, how that radiologist was selected?
A. Selected in the sense they had a call schedule, as we’ve discussed,
and who was on call would have read it.
Q. Did Ms. Hartley or her family have any choice as to what radiology
group would take the X-ray, read or interpret the X-ray?
A. Not if it was going to be done at Trinity Hospital.
Q. So if she was an in-patient at Trinity and needed a CT scan or an X-
ray, the hospital determined which radiologist -
A. Which group.
Q. Which group?
A. That’s correct.
Q. And which particular individual radiologist read the study would
depend just on that radiology group’s rotating schedule?
A. That’s right.
Q. And -- but Ms. Hartley and her family had nothing to do with
selecting the radiologist?

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 A. That’s right.
Q. And weren’t given any choice in what radiologist would read?
A. That’s correct.

Plaintiff further relies on the following facts: Mrs. Hartley never met or spoke to
Dr. Anderson; the CT scanner and the “radiology department” were within the hospital;
Trinity employees transported Mrs. Hartley to the CT scanner; Trinity employees
explained the CT scan procedure to Mrs. Hartley; Trinity employees performed the CT
scan; Trinity employees took dictation of the CT scan report; Trinity maintained the CT
scan and the CT scan report; and the CT scan report displayed Trinity’s name, address,
and phone number and did not mention Dr. Anderson’s radiology group.

Based on the foregoing undisputed facts, inter alia, Plaintiff insists she proved that
“Mrs. Hartley relied on Trinity to perform the radiology services in question.” We agree.

B. Reasonable Belief and Meaningful Notice

As for the reasonableness of Mrs. Hartley’s belief that Trinity provided her
radiology services, Plaintiff insists that the same analysis applies. In this regard, Plaintiff
relies on Boren and its discussion of Sword v. NKC Hospitals, Inc., 714 N.E.2d 142 (Ind.
1999). As explained in Boren, the reasonableness of the patient’s belief is evaluated “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.” Id. at 434 (quoting Sword, 714 N.E.2d at 152).
Plaintiff states in her brief:

Every action Trinity took, with the exception of burying a single sentence
(itself cryptic) in a form in a packet of admission paperwork, conveyed to
Mrs. Hartley that Trinity itself was providing her radiology services. As
discussed above, Trinity employees took Mrs. Hartley to the scanner,
explained the procedure to her, and performed the CT scan, all on Trinity’s
premises. Mrs. Hartley had no opportunity to select a radiologist and
definitely did not select Dr. Anderson. Trinity had no policy, procedure, or
training requiring its staff to explain to patients that their radiological care,
if any, would be provided by an independent contractor. Indeed, given the
overwhelming impression Trinity created by its actions and inactions, it
would be unreasonable to assume that anyone other than Trinity provided
these services.

(Internal citations to the record omitted).

The foregoing notwithstanding, Trinity contends that it availed itself of the
“meaningful notice” safe harbor. See id. at 436. As it explains in its brief, it refuted any

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notion that Mr. or Mrs. Hartley believed that Dr. Anderson was an employee or agent of
Trinity. In particular, Trinity came forward with two patient consent forms whereby both
Mr. and Mrs. Hartley separately and explicitly acknowledged that “[a]ll physicians and
surgeons furnishing services to me, including the Radiologist . . . are independent
contractors and are not employees or agents of the hospital.” Trinity insists it
conspicuously displayed this disclaimer in the second paragraph of the first page of a
simple two-page document. Trinity notes that Mrs. Hartley signed this form on
September 13, 2004, and Mr. Hartley signed the same form three days later when Mrs.
Hartley was assigned to another bed.

Plaintiff counters by contending that the consent was not “meaningful” as a matter
of law. As for Trinity’s reliance on the numerous consent forms Mrs. Hartley signed
when admitted to the hospital, Plaintiff insists that the operative consent form was the
second consent form signed by Mr. Hartley. On this point Plaintiff again relies on Boren
and cases it cites that stand for the proposition that hospitals do not get carte blanche
immunity based on consent forms. See id. To insulate a hospital from liability, the notice
of disclaimer must be meaningful, and Plaintiff insists that Trinity provided inadequate
notice. See id. The trial court agreed. It determined that the second consent form signed
by Mr. Hartley was the operative form, and it went on to hold that no reasonable jury
could find that it constituted meaningful notice.

Trinity used the second form to gain Mr. Hartley’s consent for the so-called
“swing bed” admission, and it was during that time when Mrs. Hartley received the CT
scan at issue. Trinity had no policy that required its staff to explain the consent form.
Moreover, as Plaintiff states, there is no evidence that anyone on Trinity’s staff called
that disclaimer to Mr. Hartley’s attention or read it to him. This is relevant because Mr.
Hartley was illiterate.3 As Plaintiff states in the brief, “[g]etting an illiterate man with a
dying wife to sign this notice gave no notice and, as a matter of law, failed the
meaningful notice test.”

As explained in Boren, 251 S.W.3d at 437, it can be significant if the disclosure
for consent is buried in a standardized form. (“The acknowledgement in the consent form
was found in the second half of one paragraph of a three-page form initialed and signed
by Mr. Boren.”). The Boren court emphasized that “[t]here is nothing in the record that
indicates that the hospital called attention to that acknowledgement.” Id. As a result, the
court held that the consent form did not constitute meaningful notice as a matter of law.
Id.

3
Trinity suggests there is no evidence of Mr. Hartley’s illiteracy; however, Linda Beard, Mr.
Hartley’s daughter, testified in her deposition as follows: “He can’t read. . . . He never went to school.”

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 Upon admission to the hospital, Mrs. Hartley was given seven pages of consent
forms to sign, and the acknowledgment at issue was within these forms. Trinity’s
“Conditions of Admission and Authorization for Medical Treatment” form was on the
sixth page. The two-page form included eleven items, some with subparagraphs or bullet
points. Patients are required to initial some paragraphs, but not the paragraph entitled
“Legal Relationship between Hospital and Physician.” Although Mrs. Hartley did initial
item #1, she did not initial in any of the other spaces provided, specifically items #7 and
#8. Furthermore, she did not print her name above her signature, nor did she include the
date in the space provided on the form. As Plaintiff explains:

The fact that the relevant form was buried within seven pages of
documents, that it was every bit as long as the two- and three-page forms
found insufficient in Boren and Cooper, and that Mrs. Hartley failed to
correctly fill out the form, indicates that any notice this lone subparagraph
provided was far from meaningful, thus supporting the trial court’s grant of
summary judgment.

Also important is the fact that Trinity failed to call attention to the “Legal
Relationship between Hospital and Physician” section. Boren, 251 S.W.3d at 437 and the
cases cited therein held that this circumstance is significant. Here, Trinity had no policy,
procedure, or training on this issue, and when Trinity was asked what Trinity employees
told a patient about this form in its Rule 30.02(6) deposition, it stated:

Q What would be explained to the patients about the forms.
A. The first form usually is -- at the top of it there is a -- information on
consent to treat, draw labs -- that sort of thing. Further down is
consent to bill their insurance. And that would have just been told to
them. This is to bill your insurance -- or something to that effect.
They would have been told a place to sign for the -- for them to sign
that they received the privacy practices and the message from
Medicare.
Q. Okay. So is there anything, specifically, in September of 2004, that
your admitting clerks were trained to say or explain about the
consent to treat form, in particular, to every single patient?
A. Not to my knowledge.
Q. Okay. Understanding that, what I’m asking is, is there any policy or
procedure that would say that your admitting clerks would ask,
specifically, the patient, did you understand any aspect of this form?
A. I don’t remember a policy saying that.
Q. Is there anything that we haven’t already discussed that your
admitting clerks would have been trained to say to patients in
September of 2004 about any of the forms that are contained in
Exhibit 8?

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 A. I don’t remember anything else.

Based on the foregoing, we must conclude that Trinity did not call Mrs. Hartley’s
attention to this acknowledgment when she was admitted.

On the form, Trinity states in bold print:

I UNDERSTAND THAT THERE WILL BE A SEPARATE CHARGE
FOR PROFESSIONAL SERVICES. I UNDERSTAND THAT THE
HOSPITAL DOES BILL FOR SOME PROFESSIONAL FEES.
OTHERWISE, THE PROFESSIONAL FEES ARE NOT INCLUDED
IN THE HOSPITAL’S BILL.

However, the notice explaining the legal relationship between the physician and the
hospital is buried in the fine print. It provides that physicians and surgeons, including
radiologists, are “independent contractors and are not employees or agents of the
hospital.” The trial court found this dichotomy significant as revealed by the following
exchange between the court and counsel:

THE COURT: And - but taking it just as - at it from an apparent agency
standpoint, it hits all three elements: The- doctor-the patient obviously was-
in the hospital, was taken to the - the CT scan. They know, they go in the
room, they turn the lights off, things hum, she goes back to her room, and
later they say, “Your CT scan” as they do. She doesn’t know if the doctor
who reads them is behind a screen, in the next building, or in Connecticut.
And probably has no thought about it, the - the hospital holds itself out as -
as doing these CT, x-ray, so forth services. And it’s just – it’s - apparent
agency. There’s no question.

The only thing that would - would prevent that from happening, taking
effect, would be the - the - the notice the parties have signed that - that says
that - and gave a list of so - so many specialists, one of which was
radiologists. And I’m thinking it says is either not an agent or is an
independent contractor, and I can’t remember the words right now.

MR. HAUBENREICH: Your Honor, I believe it says independent
contractor but we can - you know, I can pull the form.

MR. ELBERT: It doesn’t deny agency. It says they’re – it’s an independent
contractor, which a layperson doesn’t know what that means.

THE COURT: Well, that’s – that’s my point. That’s a point I was about to
make. That’s a brilliant statement because you anticipated me.

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MS. FERNANDEZ: Your Honor, if I may read to you what it actually says.
“All physicians and surgeons furnishing services to me, including the
radiologists, pathologists, anesthesiologists, and the like are independent
contractors and are not employees or agents of the hospital.”

THE COURT: Okay. Thank you. So it was both. They are independent
contractors and they’re not agents.

First of all, I fail to see what - how that would put a reasonable person on
notice that the hospital is not responsible for their actions, or would not be
responsible for their actions. These are legal terms that even lawyers
disagree about.

But to me one of the most telling things was what just came up here at the
last, that actually the operative notice is the second notice.

MS. FERNANDEZ: May I address that, Your Honor?

THE COURT: Operative notice is the second notice. And the -it was -it was
signed by the patients illiterate husband. And it’s –it’s not - I presume it’s
not contested that he was illiterate. It just -it can’t be meaningful notice.
And even if it were the original one, again, there –there’s just this, quote,
boilerplate language in there when you’re -then you’re looking at
everything else, and I just don’t see that there was any indication -any
attempt by the hospital to make the notice meaningful. So I’m ruling that
he’s an apparent agent.

Now, I’m going further with the estoppel issue.... The negligence of Dr.
Anderson, assuming - for the purpose of this ruling I’ll assume that - was
not discovered because of the hospital’s negligence until after the statute of
repose. The negligence of the hospital cost the plaintiffs that - that
opportunity. And because of the breach of this statutory and regulatory
duty, the - the plaintiffs have lost this obligation to - to recover in that - but
for that - for that negligence, the alleged negligence, of Dr. Anderson. And
it was through absolutely no fault of the plaintiffs at all.

And - and because of that, I’m going to reverse myself and - and state that
the hospital is estopped - actually, in this motion for summary judgment,
I’m not estopping them and denying it, I’m saying that - that Dr. Anderson
was an agent. And - and I’m ruling as part - partial summary judgment that
for both of those reasons, that - that Dr. Anderson was the agent of the
hospital.

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 Based on the foregoing, we conclude as the trial court did that Plaintiff established
the second and third Boren elements. Because Trinity has admitted the first element,
Plaintiff established all three elements of the Boren three-part test. Therefore, we affirm
the grant of partial summary judgment on the issue of Dr. Anderson’s agency.
Accordingly, we also find no error with the trial court’s jury instruction on this issue.

II. DISCRETIONARY COSTS

After entering judgment on the jury’s verdict, the trial court also awarded Plaintiff
discretionary costs in the amount of $68,945.85. Trinity does not challenge the amount of
the award; instead, it contends the entire award should be set aside. The entirety of
Trinity’s argument on this issue in its brief reads:

After entering judgment on the jury’s verdict against the Defendants, the
trial court also entered an order awarding Plaintiff discretionary costs in the
amount of $68,945.85. Because the underlying judgment against Trinity
should be [set] aside for the reasons set forth above, the discretionary costs
award against Trinity should also be set aside.

As a result of the Supreme Court’s decision in this matter and our decision on
remand, the underlying judgment has been affirmed in all respects. Therefore, there is no
basis upon which to set aside the award. Accordingly, we affirm the award of
discretionary costs.

IN CONCLUSION

The judgment of the trial court is affirmed and costs of appeal are assessed against
Trinity Hospital, LLC.

________________________________
FRANK G. CLEMENT JR., P.J., M.S.

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