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patient—remains the same.142
IV. HEALTH CARE INSTITUTIONAL LIABILITY
Institutional healthcare providers, such as hospitals and managed care organizations, face liability exposure for either the negligence of their employees or their own corporate or direct wrongs.143 A plaintiff pursuing such a claim must prove not only a breach by the individual, but also that there was a principal-agent or employer-employee relationship between the individual and the institutional provider.144 Inserting this additional requirement that plaintiff must prove an employment or agency relationship causes an additional layer of indeterminacy in cases involving adverse events caused by a non-employee, such as a credentialed physician. In such cases, the plaintiff would have to prove the existence of apparent agency based on a showing of hospital conduct, plus patient reliance.145 Only then can the plaintiff move on to the heart of the allegation, that the hospital employee or agent negligently approved, recommended, or prescribed an app or wearable.146 The potential for direct, or corporate, liability of healthcare institutions dates from the famous147 case of Darling v. Charleston Community Memorial Hospital. Darling articulated two major changes to how the liability system
142. Id. at 607-08. 143. See e.g., Barkes v. River Park Hosp., Inc., 328 S. W.3d 829, 833 (Tenn. 2010) (“Tennessee law clearly recognizes that hospitals owe a duty of reasonable care to their patients and may be directly liable to patients independent of any liability based on the hospital’s employees or agents.”); see generally Gregory T. Perkes, Medical Malpractice— Ostensible Agency and Corporate Negligence— Hospital Liability may be Based on Either Doctrine of Ostensible Agency or Doctrine of Corporate Negligence, 17 ST. MARY’S L.J. 551 (1986). 144. See Ramone v. Mani, 535 S. W.2d 654, 656 (Tex. Civ. App. 1975) (explaining that if nurses were found to be employees, employer would be held jointly liable for their negligence). 145. See e.g., Kashishian v. Al-Bitar, 535 N. W.2d 105 (Wis. Ct. App. 1995) (concluding that the trial court was wrong in holding that the physician in question was not the hospital’s agent, finding that when a patient enters a hospital, they rely on the reputation of the hospital itself); see generally Burless v. W. Va. Univ. Hosps., Inc., 601 S.E.2d 85 (W. Va. 2004) (finding that the Plaintiff’s established a genuine issue of material fact on the issue of their reliance on the apparent agency relationship between the hospital and their treating physicians); see generally Sanchez v. Medicorp Health Sys., 270 Va. 299 (2005) (holding that the theory of agency by estoppel was not sufficient to hold the defendant hospital system vicariously liable for the alleged negligence of its independent contractor). 146. See Burless, 601 S.E.2d at 95-96. 147. See generally Mitchell J. Wiet, Darling v. Charleston Community Memorial Hospital And Its Legacy, 14 ANNALS HEALTH L. 399 (2005) (discussing the impact that Darling, a landmark Illinois Supreme Court case, has had on hospital liability cases over the past four decades).