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Details matter with 'apparent authority'
David V. Kramer, JD, an attorney with DBL Law in Crestview Hills, KY, points out that a disclaimer on the consent form must be worded carefully to ward off claims of "apparent authority."
"The language should be framed in such a way that the hospital doesn't seem to be undermining patients' confidence in the quality of the care provided by doctors or its medical staff," he says. "Also, since many hospitals do employ some hospital-based physicians, this language should be carefully crafted to avoid misleading patients into thinking that no doctors whatsoever work for the hospital, when in fact, some do."
Small details can make a difference in these cases, says Robert M. Wolin, JD, an attorney with the law firm of Baker Hostetler in Houston. He recalls an Idaho case in which the court focused on the fact that the physician's scrub shirt had the hospital's name on it. The patient reasonably assumed that the doctor worked for the hospital, the court determined.
"We recommend that you do not allow that kind of misunderstanding by letting contract physicians wear hospital scrubs or other garments that include the hospital's logo. They should wear clothing that clearly displays their own name along with the physician group they belong to," he says. "This can seem like such a small thing, even petty, but the courts clearly are saying it matters."
Signage indicating that some or all physicians are independent contractors should be placed prominently, Wolin says, and to the extent possible, patients should be offered the chance to select their own physicians. This would specifically counter one issue cited by the courts.
"That becomes a problem when you have exclusive contracts with anesthesiology or surgery groups," Wolin says. "To the extent that there is an exclusive agreement, it is very likely - barring some very good notification to the patient - that a court would hold the doctor is an agent of the hospital under apparent authority."
Advertising can be a problem when it comes to discouraging apparent authority, Kramer says. Hospitals must be cognizant of the fact that advertising can negate attempts to give patients notice that they don't employ doctors in certain specialties. Wolin agrees, saying there can be a never-ending fight between marketing and risk management on this issue.
"Marketing wants to portray all the doctors and everyone at the hospital as one big happy family. It looks really good in the commercials," he says. "But risk management wants to say, no, they don't belong to us. You have to strike a balance, but you have to know you're taking a risk when you put that kind of image out in the community."
For more information on apparent authority, contact:
David V. Kramer, JD, DBL Law, Crestview Hills, KY. Telephone: (859) 341-1881.
Robert M. Wolin, JD, Baker Hostetler, Houston. Telephone: (713) 646-1327. E-mail: firstname.lastname@example.org.