Clark v. Southview Hosp. & Family Health Ctr. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Clark, Admr., Appellant v. Southview Hospital and Family Health
Center, Appellee.
[Cite as Clark v. Southview Hosp. & Family Health Ctr.
(1994), Ohio St.3d .]
Hospitals -- Physicians and surgeons -- Malpractice -- Hospital
may be held liable under the doctrine of agency by
estoppel for the negligence of independent medical
practitioners operating in the hosptial, when.
A hospital may be held liable under the doctrine of agency by
estoppel for the negligence of independent medical
practitioners practicing in the hospital when: (1) it
holds itself out to the public as a provider of medical
services; and (2) in the absence of notice or knowledge to
the contrary, the patient looks to the hospital, as
opposed to the individual practitioner, to provide
competent medical care. (Albain v. Flower Hosp. [1990],
50 Ohio St. 3d 251, 553 N.E.2d 1038, paragraph four of the
syllabus, overruled.)
(No. 92-2194 -- Submitted October 20, 1993 -- Decided
March 16, 1994.)
Appeal from the Court of Appeals for Montgomery County,
Nos. 12845 and 13060.
At approximately 6:00 a.m. on the morning of August 25,
1986, twenty-six-year-old Kimberly Sierra arrived at the
emergency room at appellee Southview Hospital and Family Health
Center ("Southview") suffering from an asthma attack. She
drove to the hospital with her eighteen-month-old daughter from
her house in West Carrollton. The most direct route from
Kimberly's house to Southview would have taken her directly
past Sycamore Hospital. Kimberly was pronounced dead at 11:16
a.m. that morning at Southview, allegedly as a proximate result
of negligent medical care provided by Dr. Thomas Mucci, D.O.,
the emergency-room physician on duty at Southview.
At that time, Dr. Mucci was president and sole shareholder
of TMES, Inc. ("TMES"). Pursuant to an agreement in effect on
August 25, 1986 between TMES and Dayton Osteopathic Hospital,
d.b.a. Southview, TMES was obligated to provide qualified
physicians to staff the emergency department at Southview

twenty-four hours per day. The agreement provided that "[t]he
relationship between [Southview and TMES] shall be that of
independent contractor."
On August 21, 1987, Kimberly's mother, appellant Edna K.
Clark, administrator of Kimberly's estate, filed a complaint,
later amended, in the Montgomery County Court of Common Pleas,
which alleged, in part, the wrongful death of Kimberly as a
result of medical negligence on the part of Southview through
its agents and/or employees, Dr. Mucci and TMES. It is
undisputed that prior to trial, appellant settled her claims
against Dr. Mucci and TMES, and dismissed these defendants from
the case.
On April 16, 1991, the case proceeded to trial by jury
against Southview. During her case-in-chief, appellant
testified that on the morning of August 25, 1986, while
vacationing in South Carolina, she received a telephone call
from her aunt who told her that Kimberly was in the hospital
and in critical condition. Although her aunt did not know what
hospital Kimberly was in, appellant immediately telephoned the
emergency room at Southview because she knew that Kimberly
would go there if she had any control of herself at the time.
Appellant had told her daughter that if she ever encountered
any problems, appellant wanted her to go to Southview because
it had doctors on duty there twenty-four hours a day. Prior to
August 25, 1986, appellant had been told by the administrative
department at Southview that "the hospital had doctors there
twenty-fours hours a day in their emergency room and [that]
they were fully equipped." As a result of this statement, and
having read various promotional and marketing materials
concerning the services that were available at Southview,
appellant believed that the emergency-room physicians at
Southview "worked for the hospital [and] were hospital
doctors." She told Kimberly "the same thing that I believed
[about the physicians] from the first time I was ever in the
emergency room at Southview." At no time was appellant
informed to the contrary.
The promotional and marketing materials of Southview which
were admitted into evidence consisted of various pamphlets,
brochures and an "Emergency Handbook & Physician Directory."
Also admitted into evidence were various newspaper
advertisements and the contents of radio and television
advertisements. As relevant here, the promotional literature
contains statements such as: "We welcome the opportunity to
serve our community in this way, to supplement our full range
of inpatient and outpatient medical care"; "You'll find facts
about the hospitals' emergency departments"; "Southview
***feature[s] attractive new emergency department[] with the
latest technology and equipment [which] can handle all major
medical emergencies"; "At***Southview's emergency
department[], we treat whole people, not just diseases and
traumatic injuries"; "Get more information about our emergency
facilities"; "Paramedics call the emergency department from the
scene, and by the time the patient is stabilized and brought to
the hospital, the surgical team is ready"; "Southview
Hospital[] provide[s] the full range of patient care"; and "Our
business is your good health, not just the cure of ill
health." The promotional literature does not reveal the

existence of TMES or the fact that the emergency department at
Southview is staffed by independent physicians under a contract.
At the conclusion of appellant's evidence, and again at
the close of all the evidence, Southview moved for a directed
verdict on the issue of agency by estoppel, which motion the
trial court denied.
At the conclusion of the trial, the jury returned a
general verdict in favor of appellant in the amount of
$1,004,603.94. In its answers to interrogatories, the jury
found that Southview had made representations, both directly
and indirectly, leading Kimberly to believe that Dr. Mucci was
an agent or employee of Southview, and that Kimberly had
thereby been induced to rely upon that relationship to seek
emergency services at Southview on August 25, 1986. Judgment
was entered on the verdict in the amount of $729,603.94,
reflecting a setoff of the $275,000 received by appellant in
her settlement with Dr. Mucci and TMES.
The court of appeals reversed the judgment of the trial
court, finding that a directed verdict should have been granted
in Southview's favor, and entered judgment for Southview. The
court found in part that reasonable minds could not conclude
from the evidence that Dr. Mucci or TMES was an apparent agent
of Southview.
The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Stocklin & Simpson Co., L.P.A., Valerie Stocklin and Jay
M. Simpson, for appellant.
Freund, Freeze & Arnold, Neil F. Freund and Mary E. Lentz,
for appellee.
Bricker & Eckler, James J. Hughes, Jr., and Catherine M.
Ballard, urging affirmance for amicus curiae, Ohio Hospital
Association.
Wolske & Blue and Michael S. Miller, urging reversal for
amicus curiae, Ohio Academy of Trial Lawyers.

Alice Robie Resnick, J. We must determine whether the
trial court should have directed a verdict in favor of
Southview on the issue of agency by estoppel.
Civ. R. 50(A)(4) provides that:
"When a motion for a directed verdict has been properly
made, the trial court, after construing the evidence most
strongly in favor of the party against whom the motion is
directed, finds that upon any determinative issue reasonable
minds could come to but one conclusion upon the evidence
submitted and that conclusion is adverse to such party, the
court shall sustain the motion and direct a verdict for the
moving party as to that issue."
"By the same token, if there is substantial competent
evidence to support the party against whom the motion is made,
upon which evidence reasonable minds might reach different
conclusions, the motion must be denied." Hawkins v. Ivy
(1977), 50 Ohio St.2d 114, 115, 4 O.O. 3d 243, 244, 363 N.E.2d
367, 368.
Generally, an employer or principal is vicariously liable
for the torts of its employees or agents under the doctrine of
respondeat superior, but not for the negligence of an

independent contractor over whom it retained no right to
control the mode and manner of doing the contracted-for work.
Councell v. Douglas (1955), 163 Ohio St. 292, 295-296, 56 O.O.
262, 263-264, 126 N.E.2d 597, 599-600.
This issue was addressed in Albain v. Flower Hosp. (1990),
50 Ohio St. 3d 251, 553 N.E.2d 1038. At paragraph four of the
syllabus in Albain, this court recognized and adopted the
following exception to hospital nonliability for the negligence
of independent contractors:
"A hospital may, in narrowly defined situations, under the
doctrine of agency by estoppel, be held liable for the
negligent acts of a physician to whom it has granted staff
privileges. In order to establish such liability, a plaintiff
must show that: (1) the hospital made representations leading
the plaintiff to believe that the negligent physician was
operating as an agent under the hospital's authority, and (2)
the plaintiff was thereby induced to rely upon the ostensible
agency relationship."
In attempting to apply Albain to the facts of this case,
we find ourselves questioning the very basis of the holding in
paragraph four of the syllabus. Concomitantly, we are not
unmindful of the doctrine of stare decisis which dictates
adherence to judicial decisions. Stare decisis, however, was
not intended "to effect a 'petrifying rigidity,' but to assure
the justice that flows from certainty and stability. If,
instead, adherence to precedent offers not justice but
unfairness, not certainty but doubt and confusion, it loses its
right to survive, and no principle constrains us to follow
it." Bing v. Thunig (1957), 2 N.Y. 2d 656, 667, 163 N.Y.S. 2d
3, 11, 143 N.E.2d 3, 9.
With the foregoing in mind, we now proceed to reconsider
the holding in Albain as it is applicable to the instant case.
In adopting an agency-by-estoppel exception, we noted in Albain
that the majority of jurisdictions which have recognized this
type of hospital vicarious liability has done so based on
either Section 267 of the Restatement of the Law 2d, Agency
(1958) 578, or Section 429 of the Restatement of the Law 2d,
Torts (1965) 421. In adopting Section 267, we stated that
"Section 267 poses a stricter standard, and requires actual
reliance***." Id. at 262, 553 N.E.2d at 1048-1049.
We then proceeded to narrowly define the situations to
which the doctrine could apply, without any discussion or
analysis of how the multitude of cases from other jurisdictions
has applied Sections 267 or 429 to vicarious hospital
liability. Rather, based on a law review, Comment, Hospital
Liability for Physician Malpractice: The Impact of Hannola v.
City of Lakewood (1986), 47 Ohio St. L.J. 1077, and a severely
criticized dissenting opinion in Pamperin v. Trinity Mem. Hosp.
(1988), 144 Wis.2d 188, 423 N.W.2d 848, we limited the doctrine
in a way that simultaneously abrogated the very exception we
claimed to create.
We began our analysis in Albain with the statement that
the doctrine of agency by estoppel was first applied to
hospitals in Grewe v. Mt. Clemens Gen. Hosp. (1978), 404 Mich.
240, 250-251, 273 N.W.2d 429, 433, as follows:
"'[I]f the individual looked to the hospital to provide
him with medical treatment and there has been a representation

by the hospital that medical treatment would be afforded by the
physicians working therein, an agency by estoppel can be
found.'" Albain, 50 Ohio St.3d at 262, 553 N.E.2d at 1048.
We then used this language to form the basis of what we
set forth as the first element required under paragraph four of
our syllabus, viz., that the plaintiff must show that the
hospital made representations leading her to believe that the
negligent physician was operating as an agent under the
hospital's authority. Id. at 263, 553 N.E.2d at 1049.
A close reading of the Grewe opinion, however, reveals
that the above passage was not meant to summarize what we
articulated as the first prong of agency by estoppel. Rather,
it was advanced as the total set of requirements imposed upon a
plaintiff relying on the doctrine to establish liability of the
hospital. In the very next paragraph, the court in Grewe
explained that:
"[T]he critical question is whether the plaintiff, at the
time of his admission to the hospital, was looking to the
hospital for treatment of his physical ailments or merely
viewed the hospital as the situs where his physician would
treat him for his problems. A relevant factor in this
determination involves resolution of the question of whether
the hospital provided the plaintiff with [the treating
physician] or whether the plaintiff and [the treating
physician] had a patient-physician relationship independent of
the hospital setting." Id., 404 Mich. at 251, 273 N.W.2d at
433.
In applying this test, Grewe recognized that it is not the
patient/plaintiff's duty to inquire as to the employment
relationship between the hospital and the physician it
provides. Rather, it is the hospital's duty "'to put
[plaintiff] on notice that the [treatment was not rendered as]
an integral part of [the hospital], and it cannot be seriously
contended that [plaintiff], when he was being carried from room
to room suffering excruciating pain, should have inquired
whether the individual doctors who examined him are
employees***or***independent contractors.'" Id. at 253, 273
N.W.2d at 434, quoting Stanhope v. Los Angeles College of
Chiropractic (1942), 54 Cal. App.2d 141, 146, 128 P.2d 705, 708.
Yet, in direct contrast to the very case we relied upon in
adopting paragraph four of our syllabus in Albain, we proceeded
to reject plaintiff's averment in Albain that upon her arrival
at the hospital she believed "that [the hospital] would provide
me with a physician." We found that plaintiff "did not believe
that a physician who was an employee of the hospital would be
provided her" because the treating physician "never discussed
her employment status with [plaintiff] in any manner."
(Emphasis sic.) Id. at 264, 553 N.E.2d at 1050.
We also added a second element--that the plaintiff must
show that she was induced to rely upon the apparent-agency
relationship. In fact we applied this element in a way that is
contrary to the holding of cases in all other jurisdictions
that we have found which adopted and applied the doctrine in
actions against hospitals. See discussion infra.
We stressed that "[a]s to this second element *** the
question is *** not whether the plaintiff relied on the
reputation of the hospital." (Emphasis sic.) Id. at 263, 553

N.E.2d at 1049-1050. Rather, the plaintiff must demonstrate
that she "would have refused *** care if she had known [that
the treating physician] was not an employee of the hospital."
Id. at 264, 553 N.E.2d at 1050.
By requiring the patient/plaintiff in Albain to
demonstrate that she would have refused care had she known of
the independent status of the treating physician, we have
created an exception that is so illusory that it forces the
emergency patient to demonstrate that she would have chosen to
risk further complications or death rather than be treated by a
physician of whose independence she had been unaware. In
addition, Albain imposed the burden that the patient ascertain
and understand the contractual arrangement between the hospital
and treating physician, while simultaneously holding that her
belief upon arrival that the hospital would provide her with a
physician is insufficient. Thus it is virtually impossible for
the plaintiff, especially in a wrongful-death case, to
establish reliance as required in Albain.
It is no wonder that among the many cases from other
jurisdictions dealing with this issue, we were unable to find a
single case in support of such a narrow interpretation of
agency by estoppel in a hospital setting. In fact, Albain is
so much an aberration that its requirements, proposed
elsewhere, have been called "astonishing," "absurd," "unfair,"
criticized for creating a "false dichotomy" between reliance on
the apparent agency relationship and the hospital's reputation,
and scoffed at for focusing on notice that comes "too little,
too late." Paintsville Hosp. Co. v. Rose (Ky. 1985), 683
S.W.2d 255, 258; Capan v. Divine Providence Hosp. (1980), 287
Pa. Super. 364, 369, 430 A.2d 647, 649; Note, Pamperin v.
Trinity Mem. Hosp. and the Evolution of Hospital Liability:
Wisconsin Adopts Apparent Agency (1990), Wis. L.Rev. 1129,
1147, 1148.
Appellant, in conciliatory fashion, proposes that in the
event that we choose not to reexamine Albain, we can find
evidence of reliance in the fact that Kimberly drove directly
by Sycamore Hospital in order to be treated at Southview. If
we were to do as appellant suggests, then the outcome would be
different had she suffered the asthma attack at a place
geographically closer to Southview than to Sycamore Hospital.
It is disconcerting at best that the fortuity of geographic
proximity should determine the outcome under a doctrine so
deeply rooted in public policy.
Because of the history surrounding the growth of hospital
liability and strong public policy arguments, we choose to
revisit paragraph four of the syllabus of Albain. At common
law, hospitals enjoyed immunity from liability even for the
negligent acts of their employees. The concept is said to have
originated in mid-Nineteenth Century England and was based on
the theory that charitable funds could not be diverted from the
use intended by their donors. American courts imported the
"trust fund" theory and added others to justify the exemption
of hospitals from tort liability, even long after the theory
was discarded in England. The other theories included implied
waiver, public policy and the idea that respondeat superior is
not appropriate because the hospital derived no benefit from
the physician's services. See, generally, Note, Independent

Duty of a Hospital to Prevent Physicians' Malpractice (1973),
15 Ariz. L.Rev. 953, 954-956. As one court has stated:
"[S]ince [a hospital] ministers to those who cannot pay as
well as those who can, thus acting as a good Samaritan, justice
and sound public policy alike dictate that it should be exempt
from the liability attaching to masters whose only aim is to
engage in enterprises of profit or of self-interest***."
Morrison v. Henke (1917), 165 Wis. 166, 170-171, 160 N.W. 173,
175 (overruled by Kojis v. Doctors Hosp. [1961], 12 Wis.2d 367,
107 N.W.2d 131).
This court first applied the doctrine of charitable
immunity to hospitals in Taylor v. Protestant Hosp. Assn.
(1911), 85 Ohio St. 90, 96 N.E. 1089, relying on each of the
aforementioned justifications. In summary, we made the
following predictive observation:
"Experience has shown that the ends of justice are best
secured by holding the master responsible for injuries caused
by the wrongful acts of his servant done in the prosecution of
his private ends and for his benefit.
"Doubtless the rule will be extended to meet the
requirements of manifold new conditions brought about by growth
and advance. Courts are constantly confronted with the
necessity of extending established principles to new
conditions. But in this case it is sought to extend the rule
to masters different from others and who do not come within its
reason, and to hold a public charity involving no private
profit responsible for the negligence of servants employed
solely for a public use and a public benefit. We think such
extension is not justified. Public policy should and does
encourage enterprises with the aims and purposes of defendant
and requires that they should be exempted from the operation of
the rule" Id. at 103, 96 N.E. at 1092.
Indeed, our reasoning was painfully reflective of the
realities of the time:
"The hospital of the early mid-nineteenth century would
not be recognizable as such to a modern observer.
'Respectable' people who fell sick or who were injured were
treated by their doctors at home; only the lowest classes of
society sought help in the 'hospital,' which was most often a
separate wing on the almshouse. As late as 1873, there were
only 178 hospitals in the United States, with a total of 50,000
beds. These hospitals were private charities, and their
trustees were usually unable to raise sufficient funding to
provide a pleasant stay. The hospital of the time was dirty,
crowded and full of contagious disease. The 'nurses' were
usually former patients. Doctors, who were not paid, tended
the ill for a few hours per week out of a sense of charity
mixed with the knowledge that they could 'practice' their cures
on the poor and charge young medical students for instruction
in the healing arts. These young 'house doctors' also worked
without pay, practicing cures on the ill." Note, supra, 1990
Wis. L.Rev. at 1131.
As the role of the hospital in society changed, the
justifications underlying charitable immunity eroded. At
first, courts drew a distinction between medical and
administrative acts of employees, imposing liability on the
hospital for the latter but not the former. See Schloendorff

v. Soc. of New York Hosp. (1914), 211 N.Y. 125, 105 N.E.92.
This distinction represented a judicial policy of compromise
between the doctrines of respondeat superior and charitable
immunity. See Bing v. Thunig, supra, at 662, 163 N.Y.S.2d at
7, 143 N.E.2d at 6. In Bing, however, it was observed that
liability based on respondeat superior is the rule and immunity
the exception. Id. at 666, 163 N.Y.S. 2d at 10, 143 N.E.2d at
8. In abolishing immunity, that court made the following
observation:
"The conception that the hospital does not undertake to
treat the patient, does not undertake to act through its
doctors and nurses, but undertakes instead simply to procure
them to act upon their own responsibility, no longer reflects
the fact. Present-day hospitals, as their manner of operation
plainly demonstrates, do far more than furnish facilities for
treatment. They regularly employ on a salary basis a large
staff of physicians, nurses and interns, as well as
administrative and manual workers, and they charge patients for
medical care and treatment, collecting for such services, if
necessary, by legal action. Certainly, the person who avails
himself of 'hospital facilities' expects that the hospital will
attempt to cure him, not that its nurses or other employees
will act on their own responsibility." Id. at 666, 163
N.Y.S.2d at 11, 143 N.E.2d at 8.
This court reached the same conclusion as did Bing when,
in Avellone v. St. John's Hosp. (1956), 165 Ohio St. 467, 60
O.O. 121, 135 N.E.2d 410, we abolished the doctrine of
charitable immunity for hospitals (later in Albritton v.
Neighborhood Centers Assn. [1984], 12 Ohio St. 3d 210, 12 OBR
295, 466 N.E. 2d 867, the doctrine of charitable immunity would
be abolished altogether in Ohio). We observed that "the
average nonprofit hospital of today is a large well run
corporation, and, in many instances, the hospital is so
'businesslike' in its monetary requirements for entrance and in
its collections of accounts that a shadow is thrown upon the
word, 'charity,' and the base of payment mentioned above is
broadened still more." Id. at 474, 50 O.O. at 125, 135 N.E.2d
at 415. Again in predictive fashion, we left open the question
as to a hospital's liability for the negligent acts of
independent medical practitioners working in the hospital. Id.
at 477-478, 60 O.O. at 126-127, 135 N.E.2d at 417.
With the demise of charitable immunity, the issue pushed
to the forefront was whether and under what circumstances a
hospital could be held liable for the negligence of those
independent physicians.
In Cooper v. Sisters of Charity of Cincinnati, Inc.
(1971), 27 Ohio St. 2d 242, 254, 56 O.O. 2d 146, 152, 272
N.E.2d 97, 104, we declined to apply the doctrine of agency by
estoppel to a hospital unless "'induced reliance' [is] shown
*** as required by Johnson v. Wagner Provision Co. (1943), 141
Ohio St. 584 [26 O.O. 161, 49 N.E.2d 925]." Johnson indeed
requires "reliance upon an ostensible agency." Id. at
paragraph four of the syllabus. Johnson, however, approved and
followed Rubbo v. Hughes Provision Co. (1941), 138 Ohio St.
178, 20 O.O. 233, 34 N.E.2d 202. Id. at 590, 26 O.O. at 164,
49 N.E.2d at 928. In Rubbo, we found the element of reliance to
take on a different character where a plaintiff responds to a

business advertisement. We held the doctrine of agency by
estoppel applicable "[w]here the proprietor of a provision
market advertises an article for sale in his market and a
purchaser, in reliance that he was buying from such proprietor
and without knowledge to the contrary, buys such advertised
article at a counter in the market which the proprietor had
leased to another***." (Emphasis added.) Id. at paragraph one
of the syllabus.
Rubbo imposed no requirement that the plaintiff show
induced reliance upon the employment relationship between the
proprietor and the lessee. Rather, the focus shifted to
reliance upon the relationship between the proprietor's
advertisement and the article purchased. In fact, we agreed
with the court of appeals in that case that "'prospective
purchasers going to the company's place of business had a right
to assume that the company was selling [the advertised article]
in the absence of knowledge to the contrary.'" (Emphasis
added.) Id. at 181, 20 O.O. at 234, 34 N.E.2d at 204.
Nor does Rubbo require proof that representations were
made directly to the plaintiff in order for the doctrine to
apply. "'[R]epresentations need not be made to the plaintiff
directly***[;] "[i]t is sufficient if the representation is
made to a third person to be communicated to the plaintiff, or
to*** a class of persons of whom the plaintiff is one, or even
if it is made to the public generally with a view to its being
acted on, and the plaintiff as one of the public acts on it
***."'" (Emphasis sic.) Id. at 182, 20 O.O at 235, 34 N.E.2d
at 205, quoting from Globe Indemn. Co. v. Wassman (1929), 120
Ohio St. 72, 85, 165 N.E. 579, 583, which was quoting from
Swift v. Winterbotham (1872-1873), 8 L.R., Q.B. 244.
Courts in other jurisdictions that have addressed the
issue of a hospital's liability for the negligence of those
with whom it contracts, but over whom the hospital retains no
right of control, have adopted the approach of Grewe and Rubbo
with virtual unanimity. Without exception, and irrespective of
whether Section 267 of the Restatement of Agency 2d or Section
429 of the Restatement of Torts 2d is utilized, the cases
applying this kind of liability do not require an express
representation to the patient that the treating physician is an
employee of the hospital or direct testimony as to reliance.
Rather, the element of representation is satisified when the
hospital holds itself out to the public as a provider of
medical services, and the element of reliance is satisfied if
the patient looks to the hospital, rather than a specific
physician, to provide her with medical care. In applying the
traditional elements in this way, those courts invariably
recognize the status of the modern-day hospital and its role in
contemporary society. Not only is the hospital of today a
large, well-run business, as we noted in Avellone when we
abolished charitable immunity for hospitals, but advances in
medical technology have inevitably spawned increased
specialization and industrialization. Hospitals are the only
place where the best equipment and facilities and a full array
of medical services are available at any time without an
appointment. With hospitals now being complex full-service
institutions, the emergency room has become the community
medical center, serving as the portal of entry to the myriad of

services available at the hospital. As an industry, hospitals
spend enormous amounts of money advertising in an effort to
compete with each other for the health care dollar, thereby
inducing the public to rely on them in their time of medical
need. The public, in looking to the hospital to provide such
care, is unaware of and unconcerned with the technical
complexities and nuances surrounding the contractual and
employment arrangements between the hospital and the various
medical personnel operating therein. Indeed, often the very
nature of a medical emergency precludes choice. Public policy
dictates that the public has every right to assume and expect
that the hospital is the medical provider it purports to be.
A hospital may be held liable under the doctrine of agency
by estoppel for the negligence of independent medical
practitioners practicing in the hospital if it holds itself out
to the public as a provider of medical services and in the
absence of notice or knowledge to the contrary, the patient
looks to the hospital, as opposed to the individual
practitioner, to provide competent medical care. (Albain v.
Flower Hosp., supra, paragraph four of the syllabus,
overruled.) Unless the patient merely viewed the hospital as
the situs where her physician would treat her, she had a right
to assume and expect that the treatment was being rendered
through hospital employees and that any negligence associated
therewith would render the hospital liable. Gilbert v.
Sycamore Mun. Hosp. (1993), WL 421663 (Ill.); Kashishian v.
Port (1992), 167 Wis.2d 24, 481 N.W.2d 277; Torrence v.
Kusminsky (1991), 185 W.Va. 734, 408 S.E.2d 684; Sharsmith v.
Hill (Wyo. 1988), 764 P.2d 667, 671-672; Pamperin v. Trinity
Mem. Hosp., supra; Richmond Cty. Hosp. Auth. v. Brown (1987),
257 Ga. 507, 361 S.E.2d 164; Hill v. St. Clare's Hosp. (1986),
67 N.Y.2d 72, 499 N.Y.S. 2d 904, 490 N.E.2d 823; Brownsville
Med. Ctr. v. Garcia (Tex. App. 1985), 704 S.W.2d 68; Hardy v.
Brantley (Miss. 1985), 471 So.2d 358; Paintville Hosp. Co. v.
Rose (Ky. 1985), 683 S.W.2d 255; Williams v. St. Claire Med.
Ctr. (Ky. App. 1983), 657 S.W.2d 590, 595-596; Smith v. St.
Francis Hosp., Inc. (Okla. App. 1983), 676 P.2d 279; Irving v.
Doctors Hosp. of Lake Worth, Inc. (Fla. App. 1982), 415 So. 2d
55; Themins v. Emanuel Lutheran Charity Bd. (1981), 54 Ore.
App. 901, 637 P.2d 155; Capan v. Divine Providence Hosp.,
supra; Arthur v. St. Peters Hosp. (1979), 169 N.J. Super 575,
405 A.2d 443; Adamski v. Tacoma Gen. Hosp. (1978), 20 Wash.
App. 98, 579 P.2d 970; Mehlman v. Powell (1977), 281 Md. 269,
378 A.2d 1121; Mduba v. Benedictine Hosp. (1976), 52 A.D. 2d
450, 384 NYS 2d 527; Schagrin v. Wilmington Med. Ctr., Inc.
(Del. Super. 1973), 304 A.2d 61; Vanaman v. Milord Mem. Hosp.,
Inc. (Del. Super. 1970), 272 A. 2d 718; Quintal v. Laurel Grove
Hosp. (1964), 62 Cal. 2d 154, 166-168, 41 Cal. Rptr. 577,
584-586, 397 P.2d 161, 168-170; Seneris v. Haas (1955), 45
Cal. 2d 811, 291 P.2d 915; Stanhope v. Los Angeles College of
Chiropractic (1942), 54 Cal. App. 2d 141, 128 P.2d 705. See,
also, Annotation, Liability of Hospital or Sanitarium for
Negligence of Physician or Surgeon (1987), 51 A.L.R. 4th 235,
271-276, Section 7; Comment, Medical Malpractice by Emergency
Physicians and Potential Hospital Liability (1986-1987), 75 Ky.
L.J. 633; Southwick, Hospital Liability: Two Theories Have
Been Merged (1983), 4 J. Legal Med. 1; Levin, Hospital's

Liability for Independent Emergency Room Service (1982), 22
Santa Clara L. Rev. 791; Note, Judicial Recognition of Hospital
Independent Duty of Care to Patients: Hannola v. Lakewood
(1981), 30 Cleve. St. L.Rev. 711; Note, Independent Duty of a
Hospital to Prevent Physicians' Malpractice (1973), 15 Ariz. L.
Rev. 953.
As to notice to the plaintiff that care is being provided
by independent medical practitioners, we stress that such
notice, to be effective, must come at a meaningful time.1
A review of the record in this case reveals substantial
competent evidence upon which reasonable minds could conclude,
as the jury did, that Southview is estopped from denying that
Dr. Mucci was its employee on August 25, 1986. By its
representation to Kimberly's mother and its promotional
campaign, Southview held itself out as a provider of a full
range of medical services, including emergency care. There is
nothing in the record to indicate that Kimberly was informed or
knew that the emergency care she received was being rendered by
an independent contractor merely using the hospital as a situs
to provide such care. Rather, appellant's testimony indicates
that Kimberly was looking to Southview to provide such care.
For all the foregoing reasons, the judgment of the court
of appeals is reversed, and the judgment of the trial court
entered upon the verdict is reinstated.
Judgment reversed.
Douglas, F.E. Sweeney, Pfeifer, JJ., concur.
Moyer, C.J., A.W. Sweeney and Wright, JJ., dissent.

FOOTNOTE:
1 It has been suggested, particularly by the dissent in
Pamperin v. Trinity Mem. Hosp., supra, 144 Wis. 2d at 217-218,
222, 423 N.W.2d at 860, 861, that hospitals could escape
liability for the negligence of their independent contractors
by posting signs in their emergency rooms regarding the legal
relationship of persons rendering medical assistance. The
dissent, however, misconstrues the concept of notice. Such
"notice" will rarely provide the patient with the ability to
choose at a meaningful time:
"The plaintiff, who by definition is injured and under
stress, is relying upon the hospital to provide the services
that the hospital has held out that it can provide. The
plaintiff's reliance upon the hospital's competence has been
demonstrated by her walking (or being wheeled) into the
emergency room. Simply informing her that some doctors and
staff have a different technical relationship with the hospital
than the one she expected does not lessen the reasonableness of
her reliance upon the hospital. Even if the patient understood
the difference between an employee and an independent-
contractor relationship, informing her of the nature of the
relationship after she arrives is too late. The purpose of any
notice requirement is to impart knowledge sufficient to enable
the plaintiff to exercise an informed choice. The signs
suggested by the dissent are too little, too late." Note
supra, 1990 Wis. L. Rev. at 1147.
Moyer, C.J., dissenting. I respectfully dissent. In
its attempt to mitigate the perceived harshness of Albain v.
Flower Hosp. (1990), 50 Ohio St.3d 251, 553 N.E.2d 1038, the

majority swings the pendulum so far to the other side as to
make a hospital the virtual insurer of its independent
physicians.
In Albain, this court held that a hospital may be found
liable for the acts of its staff physicians under the doctrine
of agency by estoppel. Id. at paragraph four of the syllabus.
To establish such liability, Albain required the plaintiff to
prove that "(1) the hospital made representations leading the
plaintiff to believe that the negligent physician was operating
as an agent under the hospital's authority, and (2) the
plaintiff was thereby induced to rely upon the ostensible
agency relationship." In my view, the instant case presents a
set of facts that could be found to satisfy the Albain test for
agency by estoppel and demonstrates that there is no need to
overrule paragraph four of the Albain syllabus.
As the majority points out, the evidence in this case
established that Southview Hospital, through its advertising
materials, held itself out as a hospital with an emergency room
that possessed "the latest technology and equipment" and that
could "handle all major medical emergencies." Prior to her
medical emergency, plaintiff had made a specific decision to go
to the Southview Hospital emergency room if she were to have a
medical crisis. She apparently passed directly by a closer
hospital on her way to Southview. As I read Albain, a
reasonable trier of fact could have, based on this and other
evidence at trial, found Southview liable through agency by
estoppel.
Instead, the majority overrules paragraph four of the
Albain syllabus and substitutes a new test for agency by
estoppel. Thus, a majority of the court persists in its
eagerness to overrule recent and well-reasoned precedent. The
court justifies its departure from the doctrine of stare
decisis in this case by implying that the standards enunciated
in Albain will lead to "unfairness, *** doubt and confusion."
At a time when the rising cost of medical care surpasses
most other issues on national agendas, a majority of this court
has acted to substantially increase the acts of doctors for
which hospitals will be required to provide insurance. The
test the majority has established will unfortunately increase
the cost of providing medical services and create more
unfairness, doubt and confusion than it resolves. Numerous
questions arise when one tries to analyze and predict the
consequences of the newly announced standard. For example,
what does it mean for a hospital to "hold itself out" to the
public as a provider of medical services? Does not every
medical hospital do so when it erects a sign saying "hospital"
on its premises? The majority cites approvingly to Rubbo v.
Hughes Provision Co. (1941), 138 Ohio St. 178, 20 O.O. 233, 34
N.E.2d 202, for the proposition that the hospital need only
make a representation to "a class of persons of whom the
plaintiff is one." Does this require that the plaintiff even
be aware of the representation? Does the "holding out" of the
hospital require any specific representations about the
emergency room?
As to the second prong of the newly announced test, what
constitutes "notice or knowledge to the contrary?" The
majority has indicated that a sign in the emergency room is not

sufficient. Will disclaimers in the hospital's brochures and
advertisements be sufficient? Will a hospital be able to
insulate itself by promoting, for instance, "the excellent care
provided by its independent staff physicians?"
In addition, the final element of the majority's new test,
which requires that the plaintiff look to the hospital as
opposed to the individual physician to provide competent care,
is entirely subjective. Once a plaintiff testifies that he or
she "looked to the hospital" as opposed to the individual
practitioner, a hospital defendant will have almost no
effective means to disprove the plaintiff's subjective state of
mind. The majority criticizes Albain for requiring the
plaintiff to prove reliance in a wrongful death case, stating
that it would be "virtually impossible." The newly announced
test, however, which depends exclusively on the decedent's
state of mind at the time he or she received medical care,
presents the very same problem of proof. Finally, to what
extent must the plaintiff's "looking to the hospital" be a
direct result of the hospital's representations as opposed to
the plaintiff's ambient information -- or disinformation --
about how hospitals are structured and operate in general?
More doubt and confusion will arise when the majority's
holding is applied in other factual settings. For example,
some large department stores rent space in their stores to
purveyors of individual lines of products, such as cosmetics.
In doing so, does a department store hold itself out to the
public as a "provider" of cosmetics, subjecting it to liability
for the negligent acts of the independent contractors on its
premises?
The majority asserts, and I agree, that stare decisis
should not prevail when precedent leads to injustice and
unfairness. I also agree that the role of hospitals in society
has changed dramatically over time. Nevertheless, I do not
agree that merely because hospitals have come more to resemble
businesses than charitable institutions, this court should
dramatically weaken their ability to limit contractually their
liability for their independent agents. This court should not
force hospitals to be excess insurers of their staff
physicians. Nor has plaintiff shown that, in the great
majority of malpractice cases, the physician's insurance will
be inadequate to cover the full amount of damages.
Estoppel is an equitable doctrine that, according to
Black's Law Dictionary (6 Ed.1990) 551, mandates that "[a]
party is prevented by his own acts from claiming a right to
detriment of other party who was entitled to rely on such
conduct and has acted accordingly." (Citing Graham v. Asbury
[1975], 112 Ariz. 184, 185-186, 540 P.2d 656, 657-658.) It is
a doctrine rooted in considerations of fairness that prevents a
party from benefiting from a representation, and later denying
it. By requiring reliance, the Albain test properly embodied
this concept. By eliminating the need for a nexus between the
representation and a specific act by the plaintiff in reliance
thereon, the new standard loses sight of the basis for applying
estoppel in the first place. The new standard penalizes a
hospital where it has reaped no benefit from its own actions.
The essence of the problem in these cases is the tension
between making hospitals liable in all instances and making

them liable in none. The majority criticizes Albain because it
"abrogated the very exception [it] claimed to create." The
fact that the instant case may be decided favorably to the
plaintiff under Albain, however, demonstrates otherwise.
Moreover, I believe that the majority has committed the same
fault to the opposite extreme: it has created a rule that
swallows the exception.
If the Albain standard unduly limits the class of
potential plaintiffs, the more jurisprudentially sound approach
would be to modify, interpret or soften the holding of that
case instead of conducting the radical surgery performed by the
majority opinion. For example, this court could choose not to
follow the dicta in Albain that the plaintiff prove that he or
she would have refused treatment had he or she known of the
agency relationship. 50 Ohio St.3d at 264, 553 N.E.2d at
1050. This is the difference between the incremental
development of the common law and judicial legislation. In a
time of ever-increasing medical costs and potentially drastic
changes to our health care system, this court would do well to
take caution in its radical redistribution of liabilities for
acts of medical malpractice.
A.W. Sweeney and Wright, JJ., concur in the foregoing
dissenting opinion.
Wright, J., dissenting. My former colleague, Justice
Ralph Locher, certainly said it right. The battle cry in this
era of burgeoning litigation is "sue, sue, sue!"2 "Deep
pocket" suits are upon us but for little purpose.
The majority's pejorative description of stare decisis as
"'"petrifying rigidity,"'" in this particular context defies
comment. I say this because the precedent overturned today
merely states that if a hospital employs an intern, resident or
any other medical practitioner, it must answer in damages for
their actions on the job. Conversely, if a doctor is working
as an independent contractor within a hospital and the medical
facility does not hold itself out as that doctor's employer,
the hospital should not be joined in an action for malpractice
against the doctor. Today, the majority rejects this
precedent.
From this day on no malpractice action evolving out of an
incident within a hospital will be brought without joining the
medical facility as a co-defendant and this will include the
costs of defense attendant thereto.
In this period of burgeoning costs to the medical consumer
the majority has surely taken a step backwards.
I concur in the Chief Justice's commentary and virgorously
dissent.
FOOTNOTE:
2 See Justice Locher's dissent in Nottingdale Homeowners'
Assn., Inc. v. Darby (1987), 33 Ohio St.3d 32, 37, 514 N.E.2d
702, 707.