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Estates of Milliron6/1/1990
ith adequate medical care and is not a sufficient factual basis to establish an agency relationship. Moreover, providing adequate space, equipment, and personnel is nothing more than what a hospital provides other doctors for the treatment of their patients.
"Where the undisputed evidence concerning the status of the parties defendant to each other is reasonably susceptible of but a single inference, the question of their legal relationship . . . is one purely of law." Elkins, 455 P.2d at 332. The plaintiffs failed to present sufficient evidence that would give rise to a genuine issue of material fact regarding ostensible agency, thus the District Court's grant of summary judgment to the defendant hospital on this issue was proper.
II.
The plaintiffs also contend that they are entitled to partial summary judgment on the issue of the hospitals vicarious liability under the theory that the hospital had a non-delegable duty to provide safe radiology services to the public.
The plaintiffs' contention makes an erroneous assumption that under these facts the hospital had the primary duty in the first instance in providing treatment to a doctor's patient. This cannot be assumed. Generally, a hospital is not liable for the negligence of physicians functioning as independent contractors. See Annotation, Liability of Hospital or Sanitarium for Negligence of Physician or Surgeon, 51 A.L.R.4th 235, sec. 5 This general rule "reflect the belief that a physician's knowledge and services are so specialized and personal that he cannot be controlled by a layman in the practice of his calling. . . ." See 40 Am.Jur.2d, Hospitals and Asylums, sec. 28, p. 872. Thus, under these facts, the doctor rather than the hospital, has the primary duty to provide for treatment of his patient.
The theory of non-delegable duty is an established exception to the general rule that an employer is not liable for the negligence of independent contractors. See Stepanek v. Kober Construction Co. (1981), 191 Mont. 430, 434, 625 P.2d 51, 53; see also, generally W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts, sec. 71 at 511-512 (5th ed. 1984).
In alleging that such an exception exists in this case, plaintiffs rely solely on Jackson v. Power (Alaska 1987), 743 P.2d 1376, where the Alaska Supreme Court held that a hospital licensed as a general acute care facility had a duty to provide physicians for emergency room care that was non-delegable. Jackson appears to stand alone as the only case applying the non-delegable duty exception to employer non-liability to a hospital for a doctor's negligence. Furthermore, Jackson was limited to emergency room services and did not extend to the situation where a patient was treated by his or her own doctor in an emergency room provided by the hospital for the convenience of doctors. Rather, the decision only applies to situations where a patient comes to the hospital, as an institution, seeking emergency room services and is treated by a physician provided by the hospital. Jackson, 743 P.2d at 1385. The present case is distinguishable from Jackson. This case does not involve emergency radiology services at an acute care facility, and furthermore, here the patient knew who the treating radiologist would be prior to the procedure.
The order of the District Court granting summary judgment to Roundup Memorial hospital is AFFIRMED.
CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HUNT and WEBER concur.
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