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Clark v. Southview Hosp. & Family Health Ctr.3/16/1994
care, is entirely subjective. Once a plaintiff testifies that he or she "looked to the hospital" as opposed to the individual practitioner, a hospital defendant will have almost no effective means to disprove the plaintiff's subjective state of mind. The majority criticizes Albain for requiring the plaintiff to prove reliance in a wrongful death case, stating that it would be "virtually impossible." The newly announced test, however, which depends exclusively on the decedent's state of mind at the time he or she received medical care, presents the very same problem of proof. Finally, to what extent must the plaintiff's "looking to the hospital" be a direct result of the hospital's representations as opposed to the plaintiff's ambient information --or disinformation --about how hospitals are structured and operate in general?
More doubt and confusion will arise when the majority's holding is applied in other factual settings. For example, some large department stores rent space in their stores to purveyors of individual lines of products, such as cosmetics. In doing so, does a department store hold itself out to the public as a "provider" of cosmetics, subjecting it to liability for the negligent acts of the independent contractors on its premises?
The majority asserts, and I agree, that stare decisis should not prevail when precedent leads to injustice and unfairness. I also agree that the role of hospitals in society has changed dramatically over time. Nevertheless, I do not agree that merely because hospitals have come more to resemble businesses than charitable institutions, this court should dramatically weaken their ability to limit contractually their liability for their independent agents. This court should not force hospitals to be excess insurers of their staff physicians. Nor has plaintiff shown that, in the great majority of malpractice cases, the physician's insurance will be inadequate to cover the full amount of damages.
Estoppel is an equitable doctrine that, according to Black's Law Dictionary (6 Ed.1990) 551, mandates that " party is prevented by his own acts from claiming a right to detriment of other party who was entitled to rely on such conduct and has acted accordingly." (Citing Graham v. Asbury , 112 Ariz. 184, 185-186, 540 P.2d 656, 657-658.) It is a doctrine rooted in considerations of fairness that prevents a party from benefiting from a representation, and later denying it. By requiring reliance, the Albain test properly embodied this concept. By eliminating the need for a nexus between the representation and a specific act by the plaintiff in reliance thereon, the new standard loses sight of the basis for applying estoppel in the first place. The new standard penalizes a hospital where it has reaped no benefit from its own actions.
The essence of the problem in these cases is the tension between making hospitals liable in all instances and making them liable in none. The majority criticizes Albain, because it "abrogated the very exception claimed to create." The fact that the instant case may be decided favorably to the plaintiff under Albain however, demonstrates otherwise. Moreover, I believe that the majority has committed the same fault to the opposite extreme: it has created a rule that swallows the exception.
If the Albain standard unduly limits the class of potential plaintiffs, the more jurisprudentially sound approach would be to modify, interpret or soften the holding of that case instead of conducting the radical surgery performed by the majority opinion. For example, this court could choose not to follow the dicta in Albain that the plaintiff prove that he or she would have refused treatment had he or she known of
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