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Daly v. Aspen Center for Women's Health10/6/2005
a corporate entity such as ACWH in a manner that is harmonious with the corporate practice of medicine doctrine. Assuming, without deciding, that it may, Daly still cannot prevail. The undisputed evidence precludes application of the apparent agency doctrine in this case.
In the context of medical malpractice actions, courts have articulated various formulations of apparent agency. But courts agree on two elements: (1) the entity must have acted in such a way that a reasonable person would believe that the doctor was a servant or agent; and (2) the entity's actions must have caused the plaintiff to rely on the care or skill of the doctor. See Burless v. W. Va. Univ. Hosps., Inc., supra, 601 S.E.2d at 95-96; Sword v. NKC Hosps., Inc., supra, 714 N.E.2d at 149; Restatement ยง 267.
Here, Daly's allegations, viewed in the most favorable light, arguably could establish the first element. In combination, ACWH's advertisement in the yellow pages, and its various practices in making appointments, billing and collecting, and handling questions, could lead a reasonable person to believe that the doctor was ACWH's servant or agent.
But the undisputed evidence refutes the second element. Daly did not allege that ACWH's representations caused her to seek treatment from the doctor. On the contrary, undisputed evidence shows that Daly was referred to the doctor by her regular physician.
Thus, as a matter of law, Daly cannot establish vicarious liability under the doctrine of apparent agency. See Porter v. Sisters of St. Mary, 756 F.2d 669 (8th Cir. 1985) (assuming that state law allows a hospital to be held vicariously liable for doctor's malpractice on a theory of apparent agency, hospital must prevail where there is no evidence that hospital's representation caused patient to rely on the care or skill of the doctor).
The judgment is affirmed.
JUDGE CASEBOLT and JUDGE LOEB concur.
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