Many hospitals have increased the use of “independent contractors” to provide hospital care. This has been true for many years for Emergency Room physicians, who are often employed by an ER group which then signs a contract with the hospital to provide emergency room care. The case law is fairly clear that this does not insulate the hospital from emergency room liability, since the physicians are considered to be “ostensible” or “apparent” agents of the hospital and the latter is responsible for their negligent care. However, it may change the way in which a case is evaluated and handled.

Some hospitals also contract with providers of other medical services, such as radiology or laboratory medicine. In more recent times, hospitals have often been staffed with “hospitalists” who actually are employed by an outside group but work exclusively in a particular hospital. Another variant of this is hiring staffing agencies to provide temporary providers, which may include physicians or nurses. The physicians who are placed are called “locum tenens” physicians, and agency nurses (who may come from out of state) are sometimes called “visiting nurses.”

Care facilities other than hospitals, such as free-standing urgent care centers, may also staff a center with both employed personnel, such as nurses, as well as physicians who may be part of an outside entity that contracts with the centers.

These varied practices have to be carefully evaluated by a plaintiff’s attorney at the beginning of a case, because agency must be proven by specific evidence that would be elicited during the discovery process. In addition, in some cases the individual providers have malpractice insurance provided through the agency that placed them, which means that if the providers and/or their agency employers are not named as defendants in the lawsuit, their insurance coverage would not be available for settlement purposes and the hospital would refuse to pay all of the damages from its coverage.