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Sword v. NKC Hospitals Inc.6/25/1999
Court of Appeals Cause No. 10A05-9408-CV-322
ON CIVIL PETITION TO TRANSFER
Norton's Children's Hospital ("Norton" or "defendant") challenges the decision of the Court of Appeals which reversed the trial court's decision granting summary judgment for Norton in this medical malpractice action. Sword v. NKC Hosp., Inc., 661 N.E.2d 10 (Ind. Ct. App. 1996). Specifically, the trial court ruled on a choice of law question that it was bound to apply Indiana law rather than the law of Kentucky. The trial court then held that, as a matter of law, Norton could not be held liable for the injuries to patient Diana Sword ("Sword" or "plaintiff") because plaintiff asserts that she was injured through the asserted negligence of an independent contractor physician who practiced at Norton. Finally, the trial court held that, on the record before the court, there was no genuine issue of material fact as to whether the physician's negligence caused Sword's injuries. The Court of Appeals reversed and held that, under the doctrine of apparent or ostensible agency, Norton could be held liable for the alleged negligence of its independent contractor physician, and that the record established material issues of fact both on the question of apparent agency and causation. Id. at 17.
We previously granted Norton's petition for transfer and now address the following issues: 1) whether the trial court erred in resolving the choice of law question by applying Indiana rather than Kentucky law; 2) whether an application of the doctrine of apparent or ostensible agency is appropriate and warrants a Conclusion that there are genuine issues of material fact in dispute on that issue; and 3) whether there is a genuine issue of material fact as to causation. Although we conclude that the trial court correctly resolved the choice of law question, the trial court erred when it concluded that, as a matter of law, Norton was not liable to Sword because an independent contract physician assertedly committed the negligent acts and because the record did not establish material issues of fact on the question of causation. Accordingly, we reverse the trial court's grant of summary judgment in favor of defendant on the apparent agency and causation issues and remand for further proceedings not inconsistent with this opinion.
FACTS
The facts taken in the light most favorable to the non-moving party are as follows. Diana Sword lives in southern Indiana. On April 24, 1991, Diana Sword and her husband entered Norton in Louisville, Kentucky for the delivery of their first child. Prior to entering the hospital, Sword consulted with her obstetrician about whether or not to deliver with the help of an anesthetic. Her obstetrician recommended using an epidural; he told Sword that the epidural procedure would numb her from the waist down, and that he used them frequently. Sword decided to have an epidural. She, however, did not know in advance who would administer the epidural.
Sword also made arrangements to go to Norton through her obstetrician's office. Norton aggressively marketed its services to the public. It stated in brochures that its Women's Pavilion is "the most technically sophisticated birthplace in the region." (R. at 228.) Norton also advertised that it offers:
" nstant access to the specialized equipment and facilities, as well as to physician specialists in every area of pediatric medicine and surgery. Every maternity patient has a private room and the full availability of a special anesthesiology team, experienced and dedicated exclusively to OB patients." Id. (emphasis added).
One brochure stated that:
"The Women's Pavilion medical s
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