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Lindquist v. Scott Radiological Group5/31/2005
f principal-agent or employer-employee is a question of fact to be determined by the jury when, from the evidence adduced on the question, there may be a fair difference of opinion as to the existence of the relationship." Id., citing Bargfrede v. American Income Life Ins. Co., 21 S.W.3d 157, 161 (Mo.App.W.D.2000).
Agency is established where: (1) the principal must either expressly or impliedly consent to the agent's acting on the principal's behalf; and (2) the agent is subject to the principal's control. Scott, 70 S.W.3d at 566. Because this case deals with a hospital-physician relationship, we focus on "whether the hospital generally controlled, or had the right to control, the conduct of the doctor in his work performed at the hospital." Id. at 566-67.
Although Barnes-Jewish cites several facts that could support the conclusion that Dr. Gardiner and Dr. Deline were acting as independent contractors as opposed to agents of Barnes-Jewish, reasonable minds could differ as to whether agency existed. See Id. at 567-68 and Bargfrede, 21 S.W.3d at 162. The mere fact that Doctors Gardiner and Deline retained freedom to exercise independent medical judgment does not preclude an agency relationship for purposes of vicarious liability. Scott, 70 S.W.3d at 568. Based on the record, we conclude that the trial court did not abuse its discretion in denying Barnes-Jewish's motion for JNOV.
Conclusion
The Judgment of the Circuit Court granting Defendants Mid-America and Barnes-Jewish a new trial is reversed and remanded with instructions that the trial court reinstate the original jury verdicts on all issues except with respect to past economic damages. The case is remanded for a new trial on past economic damages. The Judgment granting Scott Radiological's JNOV is affirmed.
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