A Nevada top court has handed down a decision which concluded hospitals do not have an absolute, non-delegable duty, imposing liability upon a facility for the negligent acts of independent contractor physicians.

In Renown Health v. Vanderford, the court considered whether hospitals owe a non-delegable duty to provide competent medical care to emergency room patients through independent contractor doctors. The parties in the underlying medical malpractice claims settled, but Renown Health Inc. appealed to determine the existence of such a non-delegable duty.

Judge Ron D. Parraguirre explained in the court's opinion that no absolute duty exists under Nevada law, and the court was not going to judicially create one.

In the facts underlying the case, respondent Betty Vanderford's minor son Christopher Wall was taken to Renown's ER with a complaint of headaches, nausea and fever on four different occasions. Different doctors attended Christopher on each visit, with different treatments. At the fourth visit, he was diagnosed with basilar meningitis and complications, resulting in permanent, debilitating injuries, including brain damage.

Under a legal concept known as vicarious liability, employers are generally liable for negligence committed by employees. If a facility's workers are independent contractors, such liability is not imposed upon the facility, because the workers are not truly employees. However, the law has long held that one party may owe certain duties to another that cannot be delegated, usually for public policy reasons. In those cases, the fact that the facility hired independent contractors does not insulate the facility from liability. In this case, the lower court in Nevada concluded that hospitals owed that type of non-delegable duty to ER patients, regardless of the employment status of the ER physicians.

The lower court based its decision on Nevada statutes, the Joint Committee on the Accreditation of Health Organizations(JCAHO) standards, with which Renown complied, public policy and the holdings of cases from other states.

However, the Nevada supreme court determined that the state's statutes have no basis for imposing the duty in these situations. A hospital is a policy-setter and overseer, but allows delegation of medical care to qualified professionals. The court similarly found that JCAHO standards do not require an absolute non-delegable duty, and the case law cited also did not impose an absolute non-delegable duty. The court also said that the state legislature is responsible for changing any policies on vicarious liability.

Nonetheless, the court did find that hospitals may be liable for acts of independent contractor doctors under what is known as an "ostensible agency" doctrine. "Agency" means that one party has authorized another to work on its behalf. Judge Parraguirre said the concept applies when a hospital selects a doctor to treat a patient. Parraguirre further explained that a patient in an ER can reasonably assume that a doctor is an agent of the hospital, even if that doctor is an independent contractor.

Public policy supports this decision, Parraguirre said, "...because under an ostensible agency approach, hospitals may be liable for the malpractice of independent contractor emergency room physicians. This theory allows tort victims recovery by demonstrating facts that are often present in an emergency room setting, while not judicially creating an absolute duty on hospitals that is better left to the legislature to impose."

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