Many Maine hospitals, especially since 2020, have been increasingly hiring locum tenens[1] physicians and nurses, as well as other contract providers to treat patients. When a patient goes to a hospital for treatment, their doctor or nurse’s employment status is likely the last thing on their mind; however, if that provider’s treatment is negligent, the identity of that provider’s employer may complicate a subsequent medical malpractice claim.
Identifying the Correct Parties for Litigation
Under the Maine Health Security Act, any medical malpractice claim must first go through a pre-litigation screening panel process. 24 M.R.S. § 2854. If the correct parties are not identified during the screening panel process, those parties cannot be named later during the post-panel process. See Levesque v. Central Maine Medical Center, 2012 ME 109, 52 A.3d 933 (alleged negligence of a physician whose purportedly negligent acts or omissions were not evaluated by the prelitigation screening panel precluded such claims from being brought later based on a theory of apparent agency).
The correct identification of parties can frequently raise statute of limitations issues as well. There is a three-year statute of limitation period for medical malpractice cases involving an adult claimant in Maine. 24 M.R.S. § 2902. The panel process can take approximately one year. It’s possible that a plaintiff can file a Notice of Claim in a medical malpractice case two and a half years after the alleged negligence – well within the statute of limitations period – but not discover for several months that one of the allegedly negligent providers was a locum or other contractor not employed by the hospital. At that point, the three-year statute of limitations may have run and any claims against the locum tenens provider are time barred. This is one of the reasons why it is necessary to identify the negligent providers – and their employers – as early into the panel process as possible.
Agency Questions
A hospital is responsible for the actions of its negligent providers if the plaintiff can establish that the medical provider was an agent of the hospital. Whether a medical provider is an agent of the hospital is a fact-intensive legal determination. Agency can be either actual agency (express or implied authority given by the hospital), or apparent authority. The general crux of the apparent agency doctrine is that in order for a hospital to be liable, the plaintiff must demonstrate that they reasonably believed the medical provider had the authority to act on behalf of the hospital and that belief was traceable to the hospital’s manifestations.
The law in Maine regarding apparent authority is unsettled; the Law Court has not issued a decision adopting the Restatement (Third) of Agency and the Superior Court has issued decisions relying on both the Restatement (Third) and the Restatement (Second). See Richardson v. Kalvoda, CUMSC-CV-10-648, 2014 WL 1101180, (Me. Super. Feb. 11, 2014); Arsenault v. Mid Coast Hosp. and BlueWater Emerg. Partners, LLC, CUMSC-CV-2020-047 (Me. Super. Ct., Cum. Cty., Feb. 22, 2022). This has created some confusion regarding whether the legal standard is whether a plaintiff would have justifiably relied on what the hospital held out or whether they, in fact, did so. In a case involving a locum tenens provider, the Plaintiff will have to testify to which facts they relied on, or present evidence regarding what facts a patient would reasonably rely on, in order for the court to determine that the medical provider had the authority to act on behalf of the hospital. Only if the Plaintiff’s attorney can establish that the medical provider acted with apparent authority will the hospital be held accountable for the actions of a locum tenens provider.
Consent Forms
Some hospitals in Maine have tried to argue that boilerplate language in their general patient consent form may shield them from claims based on apparent agency. In Desjardins v. BlueWater Emergency Partners, et. al., Mid Coast Hospital argued that a consent form signed by the Plaintiff in the Emergency Department barred the Plaintiff’s claims against Mid Coast Hospital based on apparent agency. Mid Coast Hospital focused on a single sentence in its consent that stated that many of the physicians at the hospital were not, in fact, employees or agents of the hospital to argue that Plaintiff’s apparent agency claims should fail. Ultimately, the jury rejected this argument and concluded that the emergency department provider, who was an independent contractor, was an apparent agent of Mid Coast Hospital.
[1] A locum tenens physician or nurse works on a temporary or part-time basis and is generally placed at a hospital by a staffing agency. Locum tenens is a Latin phrase that means “to hold the place of or substitute.”