There may be one exception, though: Apparent agency.

Apparent agency, also sometimes referred to as apparent authority, occurs when a reasonable third-party believed or understood the agent (i.e., at-fault person) had the authority to act on behalf of that third-party.

The theory of apparent agency does not require that the agent actually be employed by that third party, only that it appeared so to a reasonable person.

Florida case law has provided guidance for establishing apparent agency. In the 1995 1st DCA case of Robbins v. Hess, the court held that apparent agency existed only when all of the three elements were present:

• Representation by the purported principle;
• Reliance on that representation by a third party;
• Change in position by the third party in reliance on that representation.

An example of how the theory of apparent agency may come into play in a medical malpractice case was seen in the recent Idaho Supreme Court case of Navo v. Bingham Memorial Hospital.

According to court records, decedent had suffered a broken ankle when he slipped while getting out of his truck. The following day, he needed to undergo surgery to install a metal rod.

Unfortunately, the site of that surgery became infected and decedent would need to undergo a second surgery. A few days before that surgery, he was provided with an admission form that indicated the anesthesia services provided at the facility were given by an independent contractor who would be separately billed. He signed that form.

The day before the surgery, he was given a anesthesia and procedure consent form. That document did not clearly state that anesthesia would be administered by an independent contractor who was not an employee of the hospital. That document was provided on hospital letterhead and logo.

Prior to surgery, anesthesia was admitted via spinal tap. Soon after, decedent’s oxygen levels dropped and his heart rate slowed. However, he was eventually stabilized enough that doctors continued with surgery. However, following the procedure, decedent could not be revived. He died several days later, having never regained consciousness.

Plaintiffs, representatives of decedent’s estate, filed a medical malpractice lawsuit against not just the anesthesiologist, but also against the hospital. The hospital countered with a request for summary judgment, arguing it could not be vicariously liable for the alleged negligent actions of the anesthesiologist, an independent contractor.

District court granted summary judgment and plaintiff appealed. Plaintiff argued the hospital could be liable based on the theory of apparent agency.

The state supreme court noted the two elements under Idaho law needed to establish apparent agency against a health care facility with regard to independent contractors:

• Conduct by the (hospital) that would lead a reasonable person to believe another person acts on the (hospital’s) behalf (i.e., conduct by the hospital holding out a health care professional as an agent);
• Acceptance of agent’s services by one who reasonably believes it is rendered by the hospital.

The court noted there was sufficient evidence in this case – based on the consent form signed by decedent – that the theory of apparent agency could be established and accepted by jurors.

Based on this, the state high court reversed and remanded for trial.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Navo v. Bingham Memorial Hospital, April 26, 2016,Idaho Supreme Court

More Blog Entries:

Bove v. Naples HMA – Florida Medical Malpractice Statute of Limitations, April 21, 2016, Medical Malpractice Lawyer Blog

Read up on the year’s Top 10 Elder Law Decisions.

Below, you will discover, in chronological order, the top 10 elder law decisions for the previous year. The highlight decisions of the year was a ruling by a Pennsylvania appeals court that a son is liable for his mother’s nursing home bill under the state’s filial responsibility law.

1. State Can Recover from Spouse’s Annuity for Medicaid Benefits Paid After Spouse Died

A U.S. Court of Appeals holds that a state’s ability to recover Medicaid payments from a community spouse’s annuity after the community spouse dies is not limited to the amount of benefits the state had paid before the community spouse’s death (Hutcherson v. Arizona Health Care Cost Cont. Syst. Adm.).

(Related: The Importance of Durable Power of Attorney)

2. Community Spouse’s Promissory Note Is a Countable Resource

An Ohio appeals court rules that a promissory note held by a Medicaid applicant’s spouse is a countable resource, finding that the state law excluding promissory notes from countable resources applies only to promissory notes held by Medicaid applicants, not their spouses. Estate of Montgomery v. Ohio Dept. of Job and Family Services (Ohio Ct. App., 5th Dist., No. 11 CAH 06 0054, Feb. 14, 2012).

3. Discretionary Trust Is an Available Resource in Determining Medicaid Eligibility

An Ohio appeals court affirms the state’s denial of Medicaid benefits to a deceased nursing home resident’s estate, concluding that the resident’s irrevocable discretionary trust was an available asset for purposes of Medicaid eligibility. Gsellman v. Ohio Dept. of Job and Family Services (Ohio Ct. App., 9th Dist., No. 25954, April 11, 2012).

(Related: Proposed Changes to the VA Pension Program)

4. Son Liable for Mother’s Nursing Home Bill Under Filial Responsibility Law

A Pennsylvania appeals court finds a son liable for his mother’s $93,000 nursing home bill under the state’s filial responsibility law. Health Care & Retirement Corporation of America v. Pittas (Pa. Super. Ct., No. 536 EDA 2011, May 7, 2012).

5. Annuity Purchases Are Transfers Subject to Penalty Period

A federal district court holds that Medicaid applicants whose spouses purchased annuities for themselves with community resources after the date of institutionalization were subject to a penalty period because the purchases constituted transfers above the community spouse resource allowance (CSRA). Hughes v. Colbert (N.D. Ohio, No 5:10CV1781, May 29, 2012).

6. 3rd Circuit Says PA’s Pooled Trust Age Limit and Other Restrictions Must Go

Ruling on a challenge to a Pennsylvania law, the Third Circuit Court of Appeals holds that those over age 65 may transfer assets into a pooled trust, although they may still be subject to a transfer-of-assets penalty. Lewis v. Alexander (3rd Cir., No. 11-3439, June 20, 2012).

(Related: Elder Abuse Not Unique to James and Etta Jennings’ Overwhelming Story)

7. Annuity Purchased Post-Initial Eligibility Determination Is Not Available Resource

Reversing a district court, a U.S. Court of Appeals holds that an annuity is an unavailable resource even if it is purchased in addition to the community spouse resource allowance, and that there is no transfer penalty for the couple’s purchase of the annuity prior to a determination of Medicaid eligibility. Morris v. Okla. Dept. of Human Services (10th Cir., No. 10-6241, July 9, 2012).

8. State Can Recover Assets Transferred Before Medicaid Recipient’s Death

Reversing a lower court decision, the Idaho Supreme Court holds that the state can recover assets from the estate of a Medicaid recipient’s spouse that were transferred to the spouse before the Medicaid recipient died. In Re Estate of Perry (Idaho, No. 38694, Aug. 9, 2012).

9. Second Circuit Affirms That Income Stream from Annuity Is Not an Asset for Medicaid Purposes

The U.S. Court of Appeals for the Second Circuit upholds a district court ruling that Connecticut cannot treat the income stream from an annuity as an available asset for the purposes of Medicaid eligibility. Lopes v. Dept. of Social Services (2nd Cir., No. 10-3741-cv, Oct. 2, 2012).

(Related: Medicaid Applicant Denied for Uncompensated Transfer of Assets)

10. Transfer of House from Trust to Husband Subjects Wife to Penalty Period

An Ohio appeals court rules that the transfer of a house from a revocable trust benefiting the husband to the husband’s name subjects his wife to a Medicaid penalty period. Williams v. Ohio Dept. of Job & Family Servs. (Ohio App. 3d, No. 8-11-18, Oct. 9, 2012).

Christopher J. Berry is a Michigan elder law attorney Dedicated to helping seniors, veterans and their families navigate the long-term care maze. To learn more visit http://www.michiganelderlawattorney.com/ or call 248.481.4000