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Sanchez v. Medicorp Health System


In this appeal, the question is whether the theory of apparent or ostensible agency applies to a hospital, thereby making the hospital vicariously liable for the alleged negligence of an emergency room physician who was an independent contractor. Because we decline to adopt that theory in the context presented in this case, we will affirm the circuit court's judgment sustaining a demurrer.


The plaintiff, Leasly Sanchez, sought treatment for a head wound in the emergency room at Medicorp Health System, d/b/a Mary Washington Hospital, Inc. (Medicorp). Christopher Huesgen, M.D., treated Sanchez in the emergency room for his injuries. Dr. Huesgen was an employee of Fredericksburg Emergency Medical Associates, Inc. (Fredericksburg EMA). As a result of alleged negligent care and treatment in the emergency room, Sanchez claimed that he developed permanent weakness on his left side. Consequently, Sanchez filed a medical malpractice action against Medicorp, Fredericksburg EMA, and Dr. Huesgen.

In his motion for judgment, Sanchez alleged that Dr. Huesgen was an employee and agent of Fredericksburg EMA and was acting within the scope of his employment at all times relevant to the allegations of negligence. Sanchez also alleged that Medicorp held out Dr. Huesgen as its employee and agent and that Medicorp was therefore vicariously liable for Dr. Huesgen's alleged negligence under the theory of apparent or ostensible agency.

Medicorp filed a demurrer, asserting that a claim for vicarious liability based on the theory of apparent or ostensible agency is not cognizable under Virginia law.

The circuit court agreed and sustained Medicorp's demurrer. In a letter opinion, the court noted that the theory of apparent agency is not merely an extension of the doctrine of respondeat superior. Instead, reasoned the court, it is different because in apparent agency -- unlike the situation when the doctrine of respondeat superior applies -- there is no actual master-servant relationship. Continuing, the circuit court recognized that an employer could, however, be liable for the negligence of an independent contractor if the employer had a non-delegable duty to a third party, but the court concluded that Medicorp did not have a non-delegable duty to provide competent medical treatment to emergency room patients. Although the circuit court sustained the demurrer, it granted Sanchez leave to file an amended motion for judgment if he could allege specific conduct by Medicorp "tantamount to a fraudulent representation that Dr. Huesgen was an employee of Mary Washington Hospital."

Sanchez subsequently filed both a motion to reconsider and an amended motion for judgment. The circuit court denied the motion to reconsider. The court also dismissed the claim against Medicorp with prejudice, finding that Sanchez's amended motion for judgment did not contain the specific allegations of fraudulent representations as required by its previous order. Sanchez appeals.


A trial court's decision sustaining a demurrer presents a question of law on appeal. Glazebrook v. Board of Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003). Thus, we review the circuit court's judgment in this case de novo. Id.

A demurrer tests the legal sufficiency of facts alleged in a plaintiff's pleading. Id. A trial court must consider the pleading in the light most favorable to the plaintiff and sustain the demurrer if the pleading fails to state a valid cause of action. W.S. Carnes, Inc. v. Board of Supervisors, 252 Va. 377, 384, 478 S.E.2d 295, 300 (1996).

In the sole assignment of error, Sanchez assert

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