No. 89-558
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
THE ESTATES OF ALFRED L. MILLIRON
and ANNA B. MILLIRON,
Plaintiffs and Appellant,
WALTER FRANCKE, M.D., and
ROUNDUP MEMORIAL HOSPITAL,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell,
The Honorable Roy C. Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
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Dane C. Schofield; Peterson, Schofield & Leckie,
Billings, Montana
For Respondent:
Richard F. Cebull; Anderson, Brown, Gerbase, Cebull,
Fulton, Billings, Montana
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-- Joseph P. Hennessey, Billings, Montana
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Submitted on Briefs: April 19, 1990
Decided: June 1, 1990
Filed: ,"
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Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal by the estates of the decedent plaintiff and
his now deceased wife arising out of a medical malpractice claim.
The plaintiff estates appeal the order of the Montana Fourteenth
Judicial District Court, Musselshell County, granting summary
judgment to the defendant Roundup Memorial Hospital on the grounds
that it cannot be held vicariously liable for the alleged
negligence of an independent contractor radiologist under the facts
of this case. We affirm.
Appellants raise the following issues on appeal:
(1) Did the District Court err in concluding that there were
no genuine issues of material fact regarding ostensible agency as
a theory for imposing vicarious liability upon the hospital for
the negligence of a radiologist?
(2) Did the District Court err in concluding that the
hospital cannot be held liable for alleged negligent radiology
services supplied by an independent contractor under the theory of
nondelegable duty?
Alfred Milliron was an out-patient at the Roundup Memorial
Hospital on December 6, 1984. He was referred to the hospital and
the radiologist who practiced there, Dr. Francke, by his family
physician, Dr. Moshman, for evaluation of prostatitis and
obstructive uropathy. The method used by the radiologist is called
an I.V.P. (intravenous pyelogram.) This is a special x-ray
procedure involving the injection of a dye which has certain
hazards that were allegedly explained to the patient by Dr.
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Francke.
After injection of this dye, Alfred Milliron suffered a
reaction and eventually lost consciousness and experienced
cardiopulmonary difficulties. He was successfully resuscitated
but sustained serious neurological deficit. After filing of this
lawsuit, Mr. Milliron died and subsequently his wife, who was added
as plaintiff in an amended complaint also died. A further
amendment substituted the estates of the Millirons as plaintiffs
in this case.
Plaintiffsf amended complaint alleged several different
theories to support imposition of liability on the hospital. The
only remaining theories of concern to this appeal are vicarious
liability based on apparent or ostensible agency or the existence
of a nondelegable duty.
I.
As the District Court noted, summary judgment is never to be
used as a substitute for trial if a genuine issue of material fact
exists. Rule 56, M.R.Civ.P., Reaves v. Reinbold (1980), 189 Mont.
284, 287, 615 P.2d 896, 898. On the other hand, If[w]hen the record
discloses no genuine issue of material fact, the party opposing
summary judgment has the burden of presenting evidence of a
material and substantial nature raising a genuine issue of material
fact.If Montana Deaconess Hospital v. Gratton (1976), 169 Mont.
185, 189, 545 P.2d 670, 672.
The plaintiffs rely heavily on Kober & Kryss v. Billings
Deaconess Hospital (1966), 148 Mont. 117, 417 P.2d 476, in
maintaining that material fact issues exist concerning an agency
relationship between the radiologist and the hospital. In Kober,
we held that summary judgment was inappropriate because
[wlhether Dr. Stewart was an independent contractor or
an agent of the hospital as to Mr. Kryss will, in all
likelihood, be determined by the trier of fact as the
issue is developed.
417 P.2d at 480. However, Kober can be distinguished from the
present case. Kober involved interpretation of a contract between
the hospital and a radiology clinic that failed to specify if the
head radiologist provided by the clinic was an independent
contractor or agent of the hospital:
. . . this Court cannot determine from the contract
whether Dr. Stewart is an independent contractor or an
agent of the hospital. Nowhere in the contract is the
director specifically labeled an independent contractor.
417 P.2d at 479. Thus, in Kober there was at least a genuine
issue of material fact regarding the existence of an actual agency
relationship between the parties. Here, the radiologist is
specifically labeled an independent contractor in the radiology
agreement between him and the hospital. Thus the plaintiffs are
arguing the existence of an '*apparentu1 llostensible*l
or agency
rather than an actual agency relationship. Furthermore, in Kober
the plaintiff was admitted to the hospital for other reasons and
subsequently was sent to the hospital's radiology department for
x-rays as an in-patient. Here, the decedent was an out-patient
who was sent to the hospital by his own doctor in order to have x-
rays done under the supervison of the consulting radiologist.
Nevertheless, examining the facts of this case in light of
Kober, summary judgment would be improper if there exists any
genuine issue of material fact regarding the existence of an
I1apparentn or "ostensiblet1agency between the hospital and the
radiologist. See Burkland v. Electronic Realty Associates, Inc.,
(1987), 228 Mont. 113, 117, 740 P.2d 1142, 1145. We conclude that
the plaintiffs have failed to demonstrate any material factual
disputes regarding the existence of such an agency relationship in
this case.
First, we note that plaintiffs urge us to adopt the rule of
liability under an ostensible agency set forth in 5 429 of the
Restatement 2d of Torts. We find it unnecessary to adopt such a
rule in this case, as liability based on ostensible agency is
already specifically covered by statute, 5 28-10-103, MCA, which
provides :
28-10-103. Actual versus ostensible agency. An agency
is either actual or ostensible. An agency is actual when
the agent is really employed by the principal. An agency
is ostensible when the principal intentionally or by want
of ordinary care causes a third person to believe another
to be his agent who is not really employed by him.
(Emphasis added.)
Section 28-10-103, MCA. The plaintiffs allege the following facts
as a basis for a finding of ostensible agency: the hospital agreed
to provide adequate space, equipment, and personnel for the
radiology department; it sent and collected bills on behalf of the
radiologist; and provided the radiologist with an office at the
hospital. The radiologist had no separate office in Roundup,
rather he privately consulted in several hospitals and would travel
around to those hospitals, including Roundup Memorial, performing
work as a consulting radiologist. These allegations do not
demonstrate intentional conduct on the part of the hospital that
caused the Millirons to believe the radiologist to be an agent of
the hospital. See e.s., Burkland, 740 P.2d 1142. Nor were there
any act or acts amounting to want of ordinary care by the hospital
that led the Millirons to believe the radiologist to have been an
agent of the hospital. See e.s., Elkins v. Husky Oil (1969), 153
Mont. 159, 455 P.2d 329.
To the contrary, the situation here---where a small hospital
in a rural community obtains an independent contractor as a
specialist, the specialist rotates between several small hospitals
and the hospitals provide the doctor with an office at the
hospital---is an ordinary practice in smaller communities
throughout Montana. Providing these traveling physicians with
offices at the hospital simply helps ensure that these smaller and
more remote communities will be provided with adequate medical care
and is not a sufficient factual basis to establish an agency
relationship. Moreover, providing adequate space, equipment, and
personnel is nothing more than what a hospital provides other
doctors for the treatment of their patients.
"Where the undisputed evidence concerning the status of the
parties defendant to each other is reasonably susceptible of but
a single inference, the question of their legal relationship . .
. is one purely of law. Elkins, 455 P.2d at 332. The plaintiffs
failed to present sufficient evidence that would give rise to a
genuine issue of material fact regarding ostensible agency, thus
the District Court's grant of summary judgment to the defendant
hospital on this issue was proper.
The plaintiffs also contend that they are entitled to partial
summary judgment on the issue of the hospitals vicarious liability
under the theory that the hospital had a nondelegable duty to
provide safe radiology services to the public.
The plaintiffs1 contention makes an erroneous assumption that
under these facts the hospital had the primary duty in the first
instance in providing treatment to a doctor's patient. This
cannot be assumed. Generally, a hospital is not liable for the
negligence of physicians functioning as independent contractors.
See Annotation, Liability of Hospital or Sanitarium for Neslisence
of Physician or Surseon, 51 A.L.R.4th 235, 5 5. This general rule
llreflect[s]the belief that a physician's knowledge and services
are so specialized and personal that he cannot be controlled by
a layman in the practice of his calling. ... See 40 Am.Jur. 2d,
Hospitals and As~lums,§ 28, p.872. Thus, under these facts, the
doctor rather than the hospital, has the primary duty to provide
for treatment of his patient.
The theory of nondelegable duty is an established exception
to the general rule that an employer is not liable for the
negligence of independent contractors. See Stepanek v. Kober
construction Co. (1981), 191 Mont. 430, 434, 625 P.2d 51, 53; see
also, senerally W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser
and Keeton on the Law of Torts, 5 71 at 511-512 (5th ed. 1984).
In alleging that such an exception exists in this case,
plaintiffs rely solely on Jackson v. Power (Alaska 1987), 743 P.2d
1376, where the Alaska Supreme Court held that a hospital licensed
as a general acute care facility had a duty to provide physicians
for emergency room care that was nondelegable. Jackson appears
to stand alone as the only case applying the nondelegable duty
exception to employer nonliability to a hospital for a doctor's
negligence. Furthermore, Jackson was limited to emergency room
services and did not extend to the situation where a patient was
treated by his or her own doctor in an emergency room provided by
the hospital for the convenience of doctors. Rather, the decision
only applies to situations where a patient comes to the hospital,
as an institution, seeking emergency room services and is treated
by a physician provided by the hospital. Jackson, 743 P.2d at
1385. The present case is distinguishable from Jackson. This
case does not involve emersencv radiology services at an acute care
facility, and furthermore, here the patient knew who the treating
radiologist would be prior to the procedure.
The order of the District Court granting summary judgment to
Roundup Memorial hospital is
AFFIRMED.
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Justice
We Concur: