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Why the <i>Mejia </i>Opinion Is Troubling
Part Two of a Two-Part Article.
Contrary to the Mejia court's analysis, patients do not generally choose an emergency room in reliance on any belief about the doctors' employment or agency relationship with the hospital. They may choose the hospital based on terms of their insurance plan, or the hospital's geographic location. But nobody can seriously suggest that if a patient were confronted with a neon sign in the hospital waiting room declaring the doctors to be independent contractors whose conduct is not attributable to the hospital, he or she would turn around and look elsewhere to find a hospital with employee doctors.
In other words, patients who consent to be treated by a doctor do not generally rely on 'appearances,' one way or another, when consenting to being treated by a doctor at the hospital. Rather, they rely on the doctor to provide competent diagnosis and treatment, while they rely on the hospital to provide proper facilities and related nursing and staffing care. The rationale underlying the 'ostensible agency' fiction for imposing vicarious liability is therefore absent in this context.
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