 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Eckersley v. Reichel3/11/2003
istrict Hospital." The Eckersleys argue that Dr. Weinstein was negligent and was an actual agent of the hospital because she was a staff member there. The instructions did not mention Dr. Weinstein as a possible agent of the hospital.
The parties are only entitled to instructions which are supported by the evidence and the law on the theory litigated. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) Unless the evidence is susceptible of but a single inference, the question of whether a doctor is the agent of a hospital is usually one of fact to be decided by the jury. (Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 167-168; Seneris v. Haas (1955) 45 Cal.2d 811, 832 [on factors determining ostensible agency of doctors in hospitals, such as the right of control]; see, infra, Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038, 1043, fn. 4.) If the question of whether the doctor is an independent agent or an employee of the hospital is dependent upon the resolution of disputed facts or inferences, it is a question of fact for the trier of fact to decide. (See S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349.) Where the evidence on agency is undisputed and is susceptible of only one inference, the issue of agency is not subject to jury determination.
As a matter of law, with certain exceptions not pertinent here, noncharitable local hospital districts serving the general public may not employ physicians; they may "only contract with them as independent contractors." (Conrad v. Medical Bd. of California, supra, 48 Cal.App.4th at pp. 1041, 1043-1044, see exceptions at pp. 1047-1048.) Generally, such hospitals do not employ physicians even though they may have a general right of supervision or control over their results. (Id. at pp. 1043, fn. 4, 1047-1048.)
The testimony of Dr. Weinstein regarding her employment relationship is uncontradicted. She testified that she is an employee of EM Care, which is an independent group of emergency medicine physicians contracting with hospitals. She specifically stated she was not an employee of the hospital during the relevant period of time. Indeed, as discussed above, she could not have been an employee of the hospital because it is a noncharitable, nonacademic local district hospital serving the general public. The doctors' use of the hospital's facilities to treat patients does not make them agents of such hospital. (See generally Mayers v. Litow (1957) 154 Cal.App.2d 413, 417-418 [use of hospital by independent contracting doctors does not make them its employees].)
Furthermore, the Eckersleys never asserted that Dr. Weinstein was an ostensible agent of the hospital at trial; they tried the case on the theory that she was an actual agent. They are not entitled to an instruction on a theory they did not assert at trial and which is not supported by some evidence. (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 572.) The court did not err by refusing to give the amended version of BAJI No. 6.21 proffered by the Eckersleys.
The judgment is affirmed. Costs are awarded to respondents.
NOT TO BE PUBLISHED.
We concur:
GILBERT, P.J.
YEGAN, J.
|