 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Estates of Milliron6/1/1990
ontract whether Dr. Stewart is an independent contractor or an agent of the hospital. Nowhere in the contract is the director specifically labeled an independent contractor."
417 P.2d at 479. Thus, in Kober there was at least a genuine issue of material fact regarding the existence of an actual agency relationship between the parties. Here, the radiologist is specifically labeled an independent contractor in the radiology agreement between him and the hospital. Thus the plaintiffs are arguing the existence of an "apparent" or "ostensible" agency rather than an actual agency relationship. Furthermore, in Kober the plaintiff was admitted to the hospital for other reasons and subsequently was sent to the hospital's radiology department for X-rays as an in-patient. Here, the decedent was an out-patient who was sent to the hospital by his own doctor in order to have X-rays done under the supervision of the consulting radiologist.
Nevertheless, examining the facts of this case in light of Kober, summary judgment would be improper if there exists any genuine issue of material fact regarding the existence of an "apparent" or "ostensible" agency between the hospital and the radiologist. See Burkland v. Electronic Realty Associates, Inc., (1987), 228 Mont. 113, 117, 740 P.2d 1142, 1145. We conclude that the plaintiffs have failed to demonstrate any material factual disputes regarding the existence of such an agency relationship in this case.
First, we note that plaintiffs urge us to adopt the rule of liability under an ostensible agency set forth in sec. 429 of the Restatement 2d of Torts. We find it unnecessary to adopt such a rule in this case, as liability based on ostensible agency is already specifically covered by statute, sec. 28-10-103, MCA, which provides:
"Section 28-10-103. Actual versus ostensible agency. An agency is either actual or ostensible. An agency is actual when the agent is really employed by the principal. An agency is ostensible when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent who is not really employed by him." (Emphasis added.)
Section 28-10-103, MCA. The plaintiffs allege the following facts as a basis for a finding of ostensible agency: the hospital agreed to provide adequate space, equipment, and personnel for the radiology department; it sent and collected bills on behalf of the radiologist; and provided the radiologist with an office at the hospital. The radiologist had no separate office in Roundup, rather he privately consulted in several hospitals and would travel around to those hospitals, including Roundup Memorial, performing work as a consulting radiologist. These allegations do not demonstrate intentional conduct on the part of the hospital that caused the Millirons to believe the radiologist to be an agent of the hospital. See e.g., Burkland, [Burkland v. Electronic Realty (1987), 228 Mont. 113,] 740 P.2d 1142. Nor were there any act or acts amounting to want of ordinary care by the hospital that led the Millirons to believe the radiologist to have been an agent of the hospital. See e.g., Elkins v. Husky Oil (1969), 153 Mont. 159, 455 P.2d 329.
To the contrary, the situation here — where a small hospital in a rural community obtains an independent contractor as a specialist, the specialist rotates between several small hospitals and the hospitals provide the doctor with an office at the hospital — is an ordinary practice in smaller communities throughout Montana. Providing these traveling physicians with offices at the hospital simply helps ensure that these smaller and more remote communities will be provided w
Page 1 2 3 Montana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|