United States District Court, D. Maryland
MEMORANDUM AND ORDER
WILLIAM M. NICKERSON, Senior District Judge.
Before the Court is a Motion for Partial Summary Judgment filed by Defendant Maryland General Hospital, Inc. (Maryland General). ECF No. 88. The motion is fully briefed. Upon review of the motion and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that the motion will be denied.
This lawsuit arises from the death of Cierra Randolph while a patient at Maryland General. Briefly stated, the circumstances that led to her death are as follows. On November 4, 2010, Ms. Randolph presented to the Obstetrics and Gynecology Department at Maryland General at 37 weeks gestation for the onset of labor. The labor and delivery nurse was unable to detect any fetal heart tones and the attending obstetrician, Dr. Dana Lee, was called and remained present during the initial triage and admission process. Dr. Lee examined Ms. Randolph, identified fetal demise and placental abruption, and ordered additional tests and the admission of Ms. Randolph. After delivering a stillborn infant, Ms. Randolph suffered postpartum hemorrhaging resulting in significant blood loss. The hospital staff experienced difficulty establishing and maintaining an IV line and Ms. Randolph's condition deteriorated. She was transferred to the intensive care unit and died on November 7, 2010.
Although Plaintiffs allege breaches of the standard of care by others at Maryland General, Plaintiffs' primary allegations of negligence are directed toward Dr. Lee. Maryland General has moved for partial summary judgment, arguing that Dr. Lee was neither the actual nor apparent agent of Maryland General and, thus, it cannot be held vicariously liable for the conduct of Dr. Lee. Maryland General explains that Dr. Lee was not employed by Maryland General, but instead, was an employee of the People's Community Health Center (PCHC), a federal qualified health center that provides healthcare services throughout the Baltimore metropolitan area. On the date of Ms. Randolph's admission to Maryland General, Dr. Lee was working on a scheduled basis as a laborist, pursuant to a written agreement between Maryland General and PCHC. Under the terms of that agreement, Dr. Lee served a weekly 12-hour shift and a monthly 24-hour shift.
In its motion, Maryland General assumed that it was undisputed that Dr. Lee was not the actual agent of Maryland General. In making that assumption, Maryland General relied on representations of Plaintiffs' counsel made over the course of this litigation. In an email to Maryland General's counsel dated November 15, 2012, Plaintiffs' counsel stated that he had decided to proceed against Maryland General "as being liable for [Dr. Lee's] care under the ostensible agency theory." ECF No. 99-1. More significantly, in a pleading submitted to the Court in connection with a motion to sever Maryland General's third party complaint against Dr. Lee, Plaintiffs acknowledged that it had been determined through discovery that Dr. Lee was not an actual employee of Maryland General. ECF No. 27 at 3-4. After Plaintiffs attempted to argue in their opposition to the partial summary judgment motion that Dr. Lee was an actual employee of Maryland General, Maryland General countered in its reply that Plaintiffs should be judicially estopped from asserting actual agency.
The Court agrees that Plaintiffs cannot, at this late juncture, suddenly renege on their prior representations to counsel and the Court. Nevertheless, were the Court to consider the argument, it would readily find as a matter of law that Dr. Lee was not an employee or actual agent of Maryland General. The agreement between MCHC and Maryland General specifically provides that:
Each party, as an independent contractor of the other party, is responsible for paying its employees' salaries, benefits, payroll taxes, required insurance and other such costs arising from such employment, as well as abiding by other responsibilities of employment.... This Agreement is not intended to and does not create a relationship of employment, joint venture, partnership, or other relationship than a contract between independent contractors.
ECF No. 89-4 ¶6A.
In addition to this express provision in the Maryland General/MCHC Agreement, the determination that Dr. Lee was not an employee of Maryland General is consistent with Maryland case law concluding that physicians with hospital privileges, like Dr. Lee, are generally not considered hospital employees. See State of Md. Comm'n on Human Relations v. Suburban Hosp., 686 A.2d 706 (Md. Ct. Spec. App. 1996). Although decided in a different context, the court in Suburban Hospital considered the following facts in concluding that a physician with medical staff privileges at a hospital was, nonetheless, not considered an employee of that hospital: (1) the physician's work was usually done without supervision; (2) her work requires an extremely high degree of skill; (3) she was under no obligation to admit her patients to that hospital; (4) she was not paid by the hospital, nor were her benefits paid by the hospital; and (5) while the hospital imposed certain standards of professional care and behavior on those with hospital privileges, it did not direct the manner in which she provided care. Id. at 721. The record here shows that those same facts are true of Dr. Lee.
On the issue of whether Dr. Lee was an apparent agent of Maryland General, the Court concludes that this is a question of fact for the jury. In reaching this conclusion, the Court is guided by the Maryland Court of Appeals' decision in Mehlman v. Powell, 378 A.2d 1121 (Md. 1977). In Mehlman, the plaintiffs' decedent was experiencing breathing difficulties and was taken to Holy Cross Hospital's emergency room. The physician that treated him in the emergency room misread his electrocardiogram and sent him home without diagnosing and treating his pneumonitis and that misdiagnosis contributed to his death. In an argument similar to the argument made here by Maryland General, the hospital argued that it was not vicariously liable for the negligent acts of the emergency room doctor because the emergency room doctor that treated the decedent was an independent contractor, employed by a separate entity that operated the emergency room.
In rejecting that argument, the court relied on Section 267 of the Restatement (Second) of Agency, which it had recently endorsed in B.P. Oil Corp. v. Mabe, 370 A.2d 554 (Md. 1977). As quoted in B.P. Oil, Section 267 provides in pertinent part:
One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.
Id., 370 A.2d at 560-61. Applying that principle to the case before it in Mehlman, the court noted,
When [the decedent] made the decision to go to Holy Cross Hospital, he obviously desired medical services and equally obviously was relying on Holy Cross Hospital to provide them. Furthermore, the Hospital and the emergency room are located in the same general structure.... [A]ll appearances suggest and all ordinary expectations would be that the Hospital emergency room, physically a part of the Hospital, was in fact an integral part of the institution. It is not to be expected, and nothing put [the decedent] on notice, that the ...