A missed cancer diagnosis can have serious and irreparable consequences for patients and their families. As South Florida medical malpractice attorneys know, most cancer is identified based on the totality of one’s symptoms combined with results of radiology imaging tests, such as MRIs, CTs and PETs.
Failure to make a correct and timely diagnosis in circumstances wherein one might expect a reasonable, prudent healthcare professional in the same situation to do so may be deemed medical malpractice, particularly when it results in worsened prognosis or necessitates more intensive treatments than would have otherwise been needed.
In pursuing a medical malpractice claim for a missed cancer diagnosis, it’s often the case that more than one defendant can be held liable. Sometimes, that’s because more than one health care professional made a mistake; other times, it is by virtue of the defendant’s relationship with the negligent party that they can be found liable. For instance, plaintiffs can assert vicarious liability against the employer of an individual health care provider who was negligent – even if the employer did nothing wrong. This is based on a liability theory known as respondeat superior, Latin for “let the master answer.”
However, as in a growing number of health care employment arrangements, many top professionals are deemed “independent contractors” or “subcontractors,” meaning the hospital/clinic/facility wouldn’t be financially responsible for their mistakes. As our Naples medical malpractice attorneys can explain, though, that designation can be successfully challenged by asserting something called “apparent agency.”
What is Apparent Agency in Florida Medical Malpractice Case?
Apparent agency (sometimes referred to as apparent authority) is the power of an “agent” (for example, a doctor) to act on behalf of a principal (i.e., the hospital), even if that power is not expressly or impliedly granted. The power arises only when a third party (i.e., the patient) reasonably infers from the conduct of the principle that the principle granted agent such power.
In other words, if you are treated at a hospital by a doctor and reasonably (to your own detriment) rely on the representation by the hospital (implied or expressed) that the doctor is an agent of the hospital, you may have grounds to assert apparent agency and establish vicarious liability.
As noted in the 1998 decision by Florida’s 3rd DCA in Izquierdo v. Hialeah Hosp. Inc., apparent agency arises not from the subjective understanding or “wishful thinking” of a person dealing with the supposed agent or from the appearance created by the agent. It’s only when the principal creates the appearance of an agency relationship that one can successfully assert apparent agency to lay the foundation for vicarious liability.
This was the case recently in a matter before the U.S. Court of Appeals for the Seventh Circuit.
Radiologist’s Missed Cancer Diagnosis and Finding of Apparent Agency With Hospital
In the matter of Webster v. CDI Indianapolis, plaintiff was a patient at a diagnostic imaging facility where defendant radiologist (an independent contractor hired by the facility) missed plain indicators of her rectal cancer. As a result of that missed cancer diagnosis, plaintiff’s condition worsened – unbeknownst to her – for more than a year, ultimately metastasizing in her lungs and liver, greatly diminishing her survival prognosis.
Plaintiff sued both the radiologist as well as the imaging center, the latter on the basis of vicarious liability for the radiologist’s negligence. The imaging center argued it could not be held vicariously liable because it didn’t directly employ the radiologist. The trial court rejected this argument, applying the apparent agency precedent (instructing a medical provider is liable if a patient reasonably relied on its apparent authority over the wrongdoer). Jurors awarded a verdict of $15 million.
On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed. Evidence supported plaintiff’s assertion she reasonably had no idea about the contractual relationships between the doctor and the imaging center or that the physician who would be interpreting her scans wouldn’t be subject to the imaging center’s controls.
Naples medical malpractice attorneys know this same type of apparent agency argument can be made with respect to nurses, certified nursing assistants, technicians, anesthesiologists or any other health care professionals that may not be directly employed by the health care facility. The court will ask whether the patient’s presumption of direct employment was reasonable, stemmed from misrepresentation by the health care facility and detrimentally affected patients who relied on that presumption.
An experienced medical malpractice attorney can help guide you in the right direction if the circumstances of your case prove this complex.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Webster v. CDI Indiana, LLC, Feb. 27, 2019, U.S. Court of Appeals for the Seventh Circuit
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