Kentucky Supreme Court Addresses Ostensible Agency and Continuous Treatment Doctrine in Medical Malpractice Case in Affirming Grant of Summary Judgment to Physicians and Hospital

The Supreme Court of Kentucky recently issued a decision in Sneed v. University of Louisville Hospital affirming a trial court’s grant of summary judgment in favor of a hospital and two physicians in a Plaintiff’s medical malpractice claim arising out of a fourth-degree laceration the Plaintiff suffered during delivery on August 1, 2013, which caused a rectovaginal fistula (the most severe category of vaginal tear, often extending into the rectum), requiring surgery.

One year after the Plaintiff’s delivery and vaginal laceration, on August 1, 2014, the Plaintiff filed a lawsuit against the hospital, and on October 30, 2014, amended the complaint to add the two physicians who delivered her baby and initially repaired the laceration. The physicians moved for summary judgment based upon Kentucky’s statute of limitations, which the trial court granted. After the Plaintiff tendered expert disclosures, which did not allege a breach of the standard of care as to the hospital, the hospital moved for summary judgment, which the trial court granted, finding the hospital was not vicariously liable for the individual physicians, as they were not employees or agents of the hospital. The Court of Appeals subsequently affirmed.

The Plaintiff argued on appeal that Kentucky’s statute of limitations did not bar her action against the physicians under the continuous treatment doctrine and under the fraudulent concealment doctrine due to concealment of her records. Under Kentucky law, medical malpractice claims against physicians must be commenced within one year after the cause of action accrues, which occurs at the time the injury is first discovered or in the exercise of reasonable care should have been discovered. However, the statute of limitations can be tolled under the continuous treatment doctrine and when a party absconds, conceals himself, or by other indirect means obstructs prosecution of the case.

Under the continuous treatment doctrine, the one-year statute of limitations can be tolled when a patient is under the continuing care of a physician for the injury caused by the malpractice. Since the physicians involved in the Plaintiff’s delivery and laceration repair in this case, however, did not provide continuing care, the Plaintiff argued for expansion of the continuous treatment doctrine to include situations where a patient continues to receive care at the same hospital, even if not from the same physician. While recognizing that other states have allowed application of a continuous treatment doctrine where patients received care from the same medical group, but not the same doctor, the Supreme Court of Kentucky refused to expand the continuous treatment doctrine to the Plaintiff’s continuing care in the hospital with no continuing care by the physicians in this case.

As to the Plaintiff’s claim for tolling of the statute of limitations due to concealment of her records, the Supreme Court of Kentucky did admonish the hospital for its handling of the Plaintiff’s medical record requests; however, the Court found that the Plaintiff had the necessary knowledge to timely file her claim against the physicians without regard to any concealment of her medical records. The Plaintiff was aware no later than August 21, 2013 that she suffered a rectovaginal fistula as a result of the physicians “missing a stitch” during their initial repair of her laceration. This information was provided to the Plaintiff by other treating providers during her admission who were critical of the physicians. Also, during the Plaintiff’s hospital admission, one of the two physicians acknowledged to the Plaintiff’s sister, with the Plaintiff in the room, that the physicians were the ones who delivered the baby and performed the initial repair of her laceration.

As to the hospital, the Plaintiff argued on appeal that it was vicariously liable for the malpractice of the physicians because the physicians were ostensible agents of the hospital. Ostensible agency confers liability on one who represents that another is his servant or agent, thereby causing a third person to justifiably rely upon the care and skill of the servant or agent, and harm is caused to the third person by the lack of care or skill of the servant or agent. In this case, the Court recognized that it had previously approved the proposition that, absent notice to the contrary, a patient has a right to assume treatment received in a hospital is being provided by hospital employees for which the hospital is responsible. However, in this case, the Plaintiff had previously signed consent forms acknowledging that the physicians providing care to her at the hospital were not hospital employees and the hospital was not responsible for the actions of the physicians. The Supreme Court of Kentucky concluded that the hospital, despite ambiguity in the consent forms, had taken reasonable steps to notify the Plaintiff that she would be treated by independent contractor physicians, with no evidence of an intent to deceive or contrary actions taken by the hospital.

The Court upheld the grant of summary judgment as to the physicians finding the statute of limitations was not tolled by either the continuous treatment doctrine or fraudulent concealment doctrine. The Court upheld the grant of summary judgment as to the hospital finding the physicians were not ostensible agents of the hospital.

You can read the full opinion in here.