Cases

In a personal injury action against a hospital, in which plaintiff alleged negligence on the part of the radiologist, employed by a third party, who X-rayed plaintiff’s neck, the trial court granted defendant a nonsuit on the issue of ostensible agency.

The Court of Appeal reversed. It held that the trial court erred in granting defendant a nonsuit on the issue of ostensible agency, since there was no evidence that plaintiff knew or should have known that the radiologist was not an agent of the hospital. Under the law governing ostensible agency in the hospital context, effectively, all a patient needs to show is that he or she sought treatment at the hospital, which is what plaintiff alleged. Unless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital’s agent, such as when the patient is treated by his or her personal physician, the issue of ostensible agency must be left to the trier of fact.