Is Plaintiff Willing to Drop EP Named in Suit?

Independent contractor status is issue

Under what circumstances might a plaintiff's team be willing to drop the emergency physician (EP) involved in a lawsuit and allow the hospital to settle with the patient?

In most jurisdictions, the patient's reliance on the appointment of a physician in the emergency department to take care of him or her would give rise to an apparent agency relationship between the EP and the hospital, explains Robert D. Kreisman, a medical malpractice attorney with Kreisman Law Offices in Chicago. This means that in most cases, a lawyer would name both the EP and the hospital as party defendants.

In reality, however, it's more likely that the EP is an independent contractor associated with an ED group, who is not an employee of the hospital. The hospital would raise that lack of agency relationship, and assert that it should not be held responsible for the acts of the independent contractor, explains Kreisman.

"Therefore, it is not a common setting where a plaintiff's attorney would be willing to drop the EP from a claim or case without proof of employment, but continue on against the hospital," he says.

In other words, unless it was shown that the EP was, in fact, an employee of the hospital, it is unlikely that he or she would be released from the claim or case, says Kreisman.

Nevertheless, Kreisman notes that there is Illinois case law that supports the proposition that a hospital may be liable to a patient injured where an EP is seen to have "apparent authority."

The test for apparent authority is satisfied if the patient reasonably relied upon a hospital to provide medical care, rather than upon a specific physician, he explains, noting that most, if not all, ED patients don't select their doctor.

"Consent forms may be useful, but are not determinative as to whether or not the patient relied on the assigned physician to find a hospital liable under the apparent authority theory," adds Kreisman.

More Sympathetic Defendants

"Frequently, the plaintiff's legal team will decide to drop the individual defendants — physicians and nurses — who are viewed as more sympathetic defendants than a corporate defendant," says Michael M. Wilson, MD, JD, principal malpractice attorney at Michael M. Wilson & Associates in Washington, DC. He says that these are some of the possible conditions of the agreement to dismiss the individual defendants:

• A stipulation that the hospital is the proper defendant;

• A stipulation that the individual defendants being dismissed were, at all times, relevant, acting within the scope of their employment with the hospital;

• A stipulation that the hospital is vicariously liable for any alleged negligent acts or omissions of the individual defendants;

• A stipulation that the dismissal of the individual defendants does not, in any way, affect the liability of the hospital with respect to the actions of the dismissed individual defendants;

• A stipulation that all statements and testimony of the dismissed individual defendants may be introduced into evidence as if they were an employee of the hospital;

• A stipulation that the dismissal will not provide the basis for any defense motions; and

• A stipulation that the dismissed defendants will be made available for depositions if requested by the plaintiff or the plaintiff's counsel, and that the dismissed defendants will appear and testify voluntarily without the necessity of a subpoena or other expenses to the plaintiff at the trial of this matter.

"Defendants frequently require confidentiality," says Wilson. "Plaintiffs are generally more concerned about making sure that their future financial needs are taken care of."


For more information, contact:

• Robert D. Kreisman, JD, Kreisman Law Offices, Chicago, IL. Phone: (312) 346-0045. Fax: (312) 346-2380. E-mail: Web:

• Michael M. Wilson, MD, JD, Michael M. Wilson & Associates, Washington, DC. Phone: (202) 223-4488. Fax: (202) 280-1414. E-mail: