Appellate Developments in Medical Negligence

by Karen M. Rabenau

3. Apparent Agency: Surgeon’s Responsibility for Anesthesiologist’s Negligence

Apparent agency is the plaintiff’s claim that he or she reasonably thought that one health care provider was acting as the agent of the other because the apparent principal held the other part out to be an agent. In Noell v. Kosanin¹² the Court of Appeals held that the following facts created a jury question as to whether plaintiff reasonably assumed her surgeon was "in charge of her entire surgical procedure, including anesthesia care and recovery," thus vicariously responsible for an anesthesiologist’s negligence under apparent agency principles:

• The plastic surgeon worked with this particular anesthesiologist for a number of years, jointly scheduling surgical procedures
   
• Preoperatively, the anesthesiologist provided the patient with a pamphlet indicating that the two physicians worked jointly; and
   
• Following the procedure, the patient received a single bill from the plastic surgeon, which included charges for the anesthesiologist’s medical services.

Interestingly, although the Noell Court reiterated the basic elements of apparent agency in North Carolina: (1) apparent principal represents to third party that another is his agent; and (2) the third party justifiably relies on this representation, the Court made no mention of evidence of actual reliance by the plaintiff.

Continuing Course of Treatment Doctrine

1. Defining The Last Act

The continuing course of treatment doctrine was first applied to a hospital defendant by the North Carolina Court of Appeals in Horton v. Carolina Medicorp. ¹³ At the Supreme Court level, Horton then became the inaugural Supreme Court decision addressing the continuing course of treatment doctrine. ¹⁴

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