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Dias v. Brigham Medical Associates12/23/2002
e.g., Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 150-151 (Ind. 1999) (noting and chronicling an additional line of cases whereby apparent authority is utilized to find corporate liability for physician negligence).
Because BMA admitted that Dr. Schlitzer is its employee, the judge erred in holding that, as a matter of law, BMA could not be held liable for his alleged negligent acts because of BMA's inability to exert direction and control over his clinical decisions. The judge's rationale, that such control is presumed absent unless there is evidence to the contrary, undercuts the evolved purpose of respondeat superior liability, and would create an exception for physicians not recognized for any other profession.
There remains one point that requires further comment. Dr. Schlitzer was the employee of BMA on the date of the alleged negligent treatment, but the record is ambiguous as to whether he was acting as BMA's employee at the time he treated the plaintiff. Asked at his deposition for which practice group he was covering when he treated her, Dr. Schlitzer was unable to answer. Dr. Schlitzer did testify that he covered the labor and delivery department on behalf of BMA on a rotating basis, and that at least part of his twenty-four hour shift on May 19, was in fulfilment of his obligation as a BMA employee. Dr. Schlitzer also testified, however, that he had been asked to assume coverage for additional practice groups at some point during his twenty-four hour shift. If Dr. Schlitzer was under an obligation to BMA to be present at the hospital at the time he treated the plaintiff, his treatment of her would be within the scope of his employment by BMA, regardless of whether he had agreed to take on additional coverage shifts for other groups. If, however, he was providing coverage for some other group, under an arrangement independent of his relationship with BMA, at the time he treated the plaintiff, that treatment would not have been rendered within the scope of his BMA employment. Thus, while the record conclusively establishes that Dr. Schlitzer was an employee of BMA, the record before us is inadequate for any definitive determination whether Dr. Schlitzer's treatment of the plaintiff was within the scope of his employment by BMA.
We vacate the judgment entered in the Superior Court, and remand this case for further proceedings consistent with this opinion.
So ordered.
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