[Cite as Casares v. Mercy St. Vincent Med. Ctr., 2016-Ohio-5542.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


David Casares                                              Court of Appeals No. L-15-1313

        Appellant                                          Trial Court No. CI0201502090

v.

Mercy St. Vincent Medical Center, et al.                   DECISION AND JUDGMENT

        Appellees                                          Decided: August 26, 2016

                                                  *****

        Gary W. Osborne and Jack S. Leizerman, for appellant.

        John S. Wasung, David T. Henderson and Susan Healy Zitterman,
        for appellees.

                                                  *****

        YARBROUGH, J.

                                             I. Introduction

        {¶ 1} This is an appeal from the judgment of the Lucas County Court of Common

Pleas, granting appellee’s, Fulton County Health Center (“FCHC”), motion for summary

judgment. Because we find that a reasonable factfinder could conclude that appellant,

David Casares, was looking to the hospital to provide him with emergency medical care,

we reverse.
                         A. Facts and Procedural Background

       {¶ 2} This medical malpractice action stems from an incident that occurred on

August 29, 2010. On that date, Casares was in attendance at a wedding party at a friend’s

residence in Fayette, Fulton County, Ohio, where he consumed excessive quantities of

alcohol, causing him to become intoxicated. At approximately 4:00 a.m., Casares

decided to dive into an above-ground swimming pool at the residence. As a result of his

dive, Casares fractured his cervical spine, causing him to lose consciousness. Casares

was removed from the pool and transported to FCHC via Fulton County EMS. The

record includes an affidavit from the paramedic that responded to the scene of the party,

Ben Kohler, in which Kohler stated that the EMS team decided to transport Casares to

FCHC based on its proximity to the wedding party. At the time of his transport, it was

believed that Casares was suffering from hypothermia.

       {¶ 3} Upon arrival at FCHC, Casares was transferred into the care of James Lewis,

M.D. Casares continued to be obtunded while in Dr. Lewis’s care, and was eventually

airlifted to Mercy St. Vincent Medical Center (“MSVMC”) in Toledo. Ultimately,

Casares suffered significant injuries from the incident, including permanent injury to his

spinal cord and quadriplegia.

       {¶ 4} As a result of his injuries, Casares filed a complaint in the instant action,

asserting a claim for medical malpractice against MSVMC, Dr. Lewis, and FCHC.1 In


1
 Casares previously filed a medical malpractice action against these defendants, but said
action was voluntarily dismissed pursuant to Civ.R. 41(A)(1)(a) on April 3, 2014.




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particular, the complaint alleges that Dr. Lewis “negligently failed to take any cervical

spine fracture or spinal cord injury precautions, by placing a cervical collar, and he failed

to diagnose and treat [Casares’] cervical fracture.” Likewise, Casares asserts that the life

flight crew, acting in their capacity as employees of MSVMC, were negligent in their

failure to secure his cervical spine by the placement of a cervical collar. Additionally,

Casares alleged that Dr. Lewis, an independent contractor, was “acting as an ostensible

agent of [FCHC], and he was acting within the scope of his ostensible agency, and thus

his negligence is imputed to [FCHC] by virtue of the doctrine of respondeat superior.”

       {¶ 5} Approximately four months after Casares filed his complaint, FCHC filed a

motion for summary judgment, in which it argued, inter alia, that it could not be held

liable for Dr. Lewis’s alleged negligence through the theory of agency by estoppel.

Citing the Supreme Court of Ohio’s articulation of the relevant test for agency by

estoppel set forth in Clark v. Southview Hospital & Family Health Ctr., 68 Ohio St.3d

435, 628 N.E.2d 46 (1994), FCHC asserted that Casares could not show that he was

“looking to FCHC for care as opposed to a particular practitioner” because he was

unconscious during the relevant period and thus lacked the cognitive ability to do so.

       {¶ 6} In response to FCHC’s motion, Casares argued that Clark provides the

patient with a “right to assume” that the treatment he or she receives at an emergency

department is rendered through hospital employees, and not independent contractors. To

that end, Casares filed an affidavit in which he asserted that he assumed that his care at

FCHC would be provided by hospital employees. According to Casares, the evidence in




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the record failed to establish that he merely viewed FCHC as the location where he would

be treated by his own physician. Further, Casares asserted that he had no notice or

knowledge that Dr. Lewis was an independent contractor. According to Casares, the fact

that he was unconscious was irrelevant.

       {¶ 7} Upon consideration of the foregoing arguments, the trial court issued its

decision on FCHC’s motion for summary judgment on October 14, 2015. The trial court

agreed with FCHC that Casares did not meet his burden of showing that he “looked to”

FCHC for care as opposed to Dr. Lewis because his lack of consciousness precluded him

from doing so. Consequently, the court found that Casares could not demonstrate that

FCHC was liable for Dr. Lewis’s negligence under principles of agency by estoppel as

set forth in Clark. Therefore, the trial court granted FCHC’s motion for summary

judgment.

       {¶ 8} Thereafter, the court issued a separate order, upon Casares’ motion, finding

that there is no just reason for delay and declaring its summary judgment order a final

appealable order. Casares’ timely notice of appeal followed.

                                  B. Assignment of Error

       {¶ 9} On appeal, Casares assigns one error for our review:

              The trial court erred when it held that appellee FCHC could not be

       held liable under the agency by estoppel doctrine for the negligence of

       independent contractor, emergency department physician James Lewis,

       M.D. as a matter of law.




4.
                                        II. Analysis

       {¶ 10} Summary judgment decisions are reviewed by the appellate court de novo,

using the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio

App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). To succeed on a motion for summary

judgment, a party must show that (1) no genuine issues of material fact exist, (2) the

moving party is entitled to judgment as a matter of law, and (3) reasonable minds can

come to but one conclusion, when viewing the evidence most favorable to the nonmoving

party, and that conclusion supports the moving party. Civ.R. 56(C). When a motion for

summary judgment is made and supported, the opposing party then has the burden of

setting forth specific facts showing there is a genuine issue for trial. Civ.R. 56(E).

       {¶ 11} In his sole assignment of error, Casares contends that the trial court erred in

granting FCHC’s motion for summary judgment based upon a flawed interpretation of

the Supreme Court of Ohio’s decision in Clark, supra. In Clark, the patient was suffering

an asthma attack when she decided to drive herself to the hospital for care. The patient

ultimately passed away five hours after arriving at the hospital. The plaintiff, who was

the mother of the patient, subsequently brought a medical malpractice and wrongful death

action against the emergency room physician and the hospital. Like the present case, the

emergency room physician in Clark was not an employee of the hospital. Rather, the

physician was an independent contractor.

       {¶ 12} At the outset, the court stated the general rule that an employer is

vicariously liable for the torts of its employees or agents, but not for the negligence of an




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independent contractor. Clark, 68 Ohio St.3d at 437, 628 N.E.2d 46. However, the court

went on to note an exception to this general rule, initially articulated in Albain v. Flower

Hosp., 50 Ohio St.3d 251, 553 N.E.2d 1038 (1990). Under this exception a hospital

could be held liable under the doctrine of agency by estoppel for the negligent acts of a

physician to whom it granted staff privileges where “(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.” Albain at paragraph four of the syllabus.

Regarding the reliance element, the court in Albain went on to explain that “the question

is whether the plaintiff relied on the ostensible agency relationship, not whether the

plaintiff relied on the reputation of the hospital.” Id. at 263. In other words, in order to

establish the reliance element, a plaintiff would have to demonstrate that she would have

refused treatment if she had known the physician was not an employee of the hospital.

Id. at 264.

       {¶ 13} Upon consideration of its holding in Albain, the Supreme Court of Ohio

determined that it was “virtually impossible” for plaintiffs to prove that they would have

refused care if they had known that the treating physician was not a hospital employee.

Clark at 440. The court reasoned that the reliance element “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.” Id.

Additionally, the court found that the test set forth in Albain would require the patient to




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“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.” Id. Thus, the court found that the

Albain test was unworkable, as it would be “virtually impossible for the plaintiff,

especially in a wrongful-death case, to establish reliance * * *.” Id.

       {¶ 14} Having struck down the agency by estoppel test set forth in Albain, the

court proceeded to craft a new test that relaxed the reliance element, which it set forth in

its syllabus as follows:

              A hospital may be 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. Clark, 68 Ohio St.3d 435, 628 N.E.2d 46,

       syllabus.

       {¶ 15} Ultimately, the court determined that the hospital was estopped from

denying that the treating physician was its employee. Id. at 446. The evidence

supporting the court’s conclusion consisted of direct and indirect representations made by

the hospital that led the patient to believe that the physician was an agent of the hospital.

Further, there was evidence in the record showing that the defendant hospital was not the

one closest to the patient’s home. Despite the lack of proximity, the patient was




7.
instructed to go to the defendant hospital by her mother because doctors were there

around the clock. Based on this information and other promotional material that mother

had seen, mother understood that the emergency room physicians were employees of the

hospital. Mother communicated this understanding to the patient prior to the asthma

attack. Thus, mother believed that if the patient “had any control of herself at the time,”

she would have chosen to go to the defendant hospital. Id. at 436.

       {¶ 16} In this case, there is no dispute that FCHC held itself out to the public as a

provider of medical services and that Dr. Lewis was an independent contractor and not an

employee of the hospital. However, the parties disagree as to whether Casares can

establish that he looked to FCHC to provide him with care in light of his lack of

consciousness during the relevant time period. The parties have been unable to locate

any Ohio appellate decisions applying the agency-by-estoppel test to a factual

circumstance in which the patient was unconscious when the decision was made to

transport the patient to the hospital. Likewise, our research has uncovered no such

authority.

       {¶ 17} Helpful to our resolution of the present issue, the Clark court, in discussing

the second element of the agency-by-estoppel test, noted 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




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       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.” Clark, 68 Ohio St.3d at 439, 628

       N.E.2d 46, quoting Grewe v. Mt. Clemens Gen. Hosp., 404 Mich. 240, 251,

       273 N.W.2d 805 (1977).

       {¶ 18} Here, the record is clear that Casares had no prior patient-physician

relationship with Dr. Lewis. Nonetheless, FCHC argued, and the trial court agreed, that

Casares’ lack of consciousness at the time of his transport to FCHC, and throughout the

duration of his treatment, rendered him incapable of “looking to” FCHC for his medical

treatment, thereby precluding recovery from FCHC for the alleged negligence of Dr.

Lewis. In response, Casares contends that it would be unjust to preclude him from

recovery against FCHC simply because his injuries were so significant that they left him

unconscious. He asserts that the decision to bar recovery to unconscious patients “defies

reality, logic, equity and justice.” We are inclined to agree with Casares.

       {¶ 19} We disagree with the narrow interpretation of Clark advanced by FCHC,

which would require Casares to demonstrate that he personally made the decision to go to

the hospital for medical treatment. Such an interpretation of the agency-by-estoppel test

set forth in Clark would lead to absurd results in cases where the patient is incapable of

making a decision whether through minority, incompetency, or, as in this case,

unconsciousness. This would lead to an arbitrary imposition of vicarious liability based




9.
on the patient’s capacity to make a decision at all rather than a decision to receive

treatment from a specific physician as opposed to the hospital in general, which is the

focus of the test in Clark. A more reasonable reading of Clark would be that its use of

the term “patient” includes the patient or those making decisions on behalf of the patient.

In that regard, Kohler, the responding EMT, testified in his affidavit that “Casares was

taken to [FCHC] for treatment based on my assessment. It was the closest hospital and

appropriate based on my findings.”

       {¶ 20} Furthermore, our rejection of FCHC’s narrow interpretation of the agency-

by-estoppel test is supported by the public policy language from Clark. Speaking

specifically of emergency rooms, the court stated that

       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




10.
       public has every right to assume and expect that the hospital is the medical

       provider it purports to be. Clark, 68 Ohio St.3d at 444, 628 N.E.2d 46.

       {¶ 21} In light of the complexity of modern hospitals and their various contractual

arrangements, the court stated: “Unless the patient merely viewed the hospital as the

situs where her physician would treat her, she had the 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.” Clark at 445.

       {¶ 22} Based upon the foregoing, we hold that a hospital may be held liable under

the doctrine of agency by estoppel for the negligent acts of its independent contractor

emergency room physician where the patient is unconscious and without notice of the

independence of the physician at the time of paramedic transport to the emergency room.

       {¶ 23} In this case, there is no evidence to suggest that Casares viewed FCHC as

the situs where his personal physician would treat him. Indeed, Casares stated in his

affidavit that he would not have expected to be treated by his Toledo-based primary care

physician in FCHC’s emergency department. Rather, Casares “assumed that physicians

working in hospital emergency departments were employed by the hospital.” Moreover,

the record is devoid of any evidence that Casares possessed knowledge or notice as to Dr.

Lewis’s independent contractor status.

       {¶ 24} Because a factfinder, viewing the evidence in a light most favorable to

Casares, could conclude that a genuine issue of material fact exists regarding whether




11.
Casares was looking to FCHC to provide him with his emergency medical care, we find

that the trial court erred in granting FCHC’s motion for summary judgment.

       {¶ 25} Accordingly, Casares’ sole assignment of error is well-taken.

                                     III. Conclusion

       {¶ 26} The judgment of the Lucas County Court of Common Pleas is reversed,

and the matter is remanded to the trial court for further proceedings consistent with this

decision. Appellees are ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment reversed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                               _______________________________
                                                            JUDGE
Stephen A. Yarbrough, J.
CONCUR.                                         _______________________________
                                                            JUDGE


James D. Jensen, P.J.                           _______________________________
CONCURS IN JUDGMENT ONLY.                                   JUDGE




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