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Perkins v. Children's Orthopedic Hospital12/27/1993
the face of Glover, plaintiffs are charged with the knowledge that as a matter of law they cannot release the doctors/agents and preserve the vicarious liability of the hospital/principal. If plaintiffs truly intended not to release Drs. Cohen, Furman, McCroskey, and Morray they could easily have added the phrase, "except Drs. Cohen, Furman, McCroskey, and Morray" immediately after the word "agents" in the release. Whether the University defendants would have agreed to such a release may be doubtful, but the release, if accepted, would have expressed what plaintiffs now claim their intent was. If rejected, the plaintiffs would realize they cannot have it both ways: release the unnamed agents to achieve a settlement with the University defendants, but rely on their alleged negligence for vicarious liability against Children's Hospital. Further, there is no merit to a claim that the word "agents" did not include
the unnamed doctors. Plaintiffs cite no authority for the proposition that the word "agents", used in the context of a release, would not include individuals with a relationship to a principal similar to that between the unnamed doctors and the University.
We hold the executed release, by its express terms, released the unnamed doctors from liability to the plaintiffs, and by operation of law the release of the doctors in turn released Children's Hospital from any claim of vicarious liability based upon the negligence, if any, of those doctors.
The trial court's summary judgment dismissing plaintiffs' vicarious liability claims against Children's Hospital based on Dr. Misbach's negligence is affirmed. The trial court's denial of Children's Hospital's motion to dismiss all vicarious liability claims based on the alleged negligence of Drs. Cohen, Furman, McCroskey, and Morray is reversed with directions to dismiss the claims.
The case is remanded for further proceedings consistent with this opinion.
Disposition
Holding that the nonsettling hospital was discharged from any claim of vicarious liability based on the alleged negligence of the settling primary surgeon and that the release included the four assisting physicians and discharged the nonsettling hospital from any claim of vicarious liability based on the physicians' negligence, the court affirms the partial summary judgment in part, reverses it in part, dismisses the vicarious liability claims based on the alleged negligence of the four assisting physicians, and remands the case for further proceedings.
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