What is Ostensible Agency in a Malpractice Lawsuit Against a Hospital?

What Is Ostensible Agency?

Ostensible agency is a legal doctrine holding hospitals accountable when patients reasonably believe a physician is acting on behalf of the hospital—even if the physician is not officially employed by the hospital. Under California law (Civil Code §§ 2298, 2300, 2317, and 2334), hospitals can be liable for a physician’s negligence if patients can prove two key elements:

Two Key Elements of Ostensible Agency

1. The Hospital Held Itself Out as a Provider of Care

Hospitals implicitly or explicitly present themselves as care providers. If a hospital does not clearly inform a patient that a physician is not its agent, liability may apply.

2. The Patient Relied on the Hospital for Care

Patients must prove they sought treatment from the hospital—not the individual physician. If the patient personally chose the doctor, liability may not extend to the hospital.

How Courts Determine Ostensible Agency

Courts typically presume liability unless:

The hospital explicitly notified the patient the doctor was not its agent.

The patient was treated by their personal physician, indicating prior knowledge of the physician’s independent status.

Notable Case Law

Several California cases clarify the scope of ostensible agency:

Markow v. Rosner (2016): Outlined the two-element test for ostensible agency and emphasized that reliance is shown when the plaintiff looks to the hospital for services.

Wicks v. Antelope Valley Healthcare Dist. (2020): Reinforced hospitals may be liable unless they clearly notify patients of the physician’s non-employee status.

Whitlow v. Rideout Memorial Hospital (2015): Noted additional fact questions, such as whether the patient entrusted themselves to the hospital and whether they reasonably believed the physician was an agent.

Mejia v. Community Hospital of San Bernardino (2002): Stated that a patient generally only needs to show they sought treatment at the hospital, leaving the issue of ostensible agency to the trier of fact unless evidence conclusively shows the patient knew the physician’s true status.

Other Ways to Sue a Hospital 

Elam v. College Park Hospital (1982)

Even if a doctor is independent and the patient knows it, there is potential liability if the hospital allows a doctor to use its facilities when the hospital knew or should have known that the doctor was not qualified. Elam v. College Park Hospital (1982) 132 Cal.App.3d 332 held that hospitals are responsible to exercise reasonable care in giving credentials to practice (granting privileges) not only to directly hired staff such as nurses but of all physicians on staff. The law gives hospitals through their governing board ultimate control over who can use the hospital. The Elam case gives an injured person the right to sue a hospital if these privileges are negligently granted or negligently allowed to remain in effect when they should be terminated or restricted for reasons of patient safety.