A QUESTION OF ETHICS Mallie Brackens consulted Dr. Floyd Jones ...

[Bernana]

A QUESTION OF ETHICS
  Mallie Brackens consulted Dr. Floyd Jones in April 1983 because of stomach pains. Dr. Jones admitted her to the Detroit Osteopathic Hospital for the purpose of performing a gastrojejunostomy (a surgical joining of the middle section of the small intestine). After the surgery, Brackens was readmitted to the hospital twice because of dehydration and other problems and was seen by Drs. Taras and Tobeswhom she had never met beforefor upper gastrointestinal examinations. Her problems persisted and finally, in December 1983, she learned from physicians at another hospital that instead of a gastrojejunostomy, Dr. Jones had performed a gastroileostomy, which is a bypass procedure performed on obese person. Brackens sued the Detroit Osteopathic Hospital, alleging that it was liable for the negligence of its agents, Drs. Taras and Tobes, who had failed to detect the improperly performed gastrojejunostomy when they examined her. Both the trial court and the appellate court in this case held that, generally speaking, a hospital is not liable or the negligence of a physician who is an independent contractor and merely uses the hospital's facilities to render treatment to his or her patients. Although the trial court granted the hospital's facilities to render treatment to his or her patients. Although the trial court granted the hospital's motion for summary judgment, the appellate court remanded the case for trial. The appellate court reasoned that if an individual looked to the hospital to provide medical treatment and there was a representa-tion by the hospital that medical treatment would be performed by physicians working therein, an agency by estoppel can be found.

Question 2

Gratuitous agents are appointed by other agents to undertake some work for the principal.
 a. True
  b. False
  Indicate whether the statement is true or false

[Sweetkitty24130]

Answer to Question 1

A QUESTION OF ETHICS
1. One of the factors that a court will consider in determining whether agency by estoppel can be found is whether the plaintiff had an independent relationship with the physician prior to entering the hospital. Brackens stated in an affidavit that she had never met Dr. Taras or Dr. Tobes before she was admitted to the hospital. Also, as this question indicated, Brackens stated that she had no reason to believe that the doctors were not employed by the hospital and assumed that they were hospital physicians. Given the facts of this case, you would be justified in finding agency by estoppel. In determining the fairness of this conclusion, you would need to evaluate the implications of your decision for the hospital-physician relationship and hospital policies. If hospitals could be held liable under agency law for the malpractice of independent contractors (physicians), they would likely try to avoid this liability by informing patients in advance that certain doctors were not employees, and so on. Administrative procedures would need to be enacted under which such information could be distributed, and the hospital would have to pay additional wages to cover the additional time hospital employees would have to spend in distributing this information. In short, to avoid the cost of liability judgments, hospitals would incur other costs. In view of the financial difficulties facing many hospitals today, you may find that that being fair to Brackens may mean being unfair to those who would suffer if more hospitals had to close their doors.
2. A basic ethical precept underlying the law is that persons should be held responsible for their actions (or lack of action). In regard to agency law, this precept is expressed in the concept of agency by estoppel. If a party has reason to believe from the principal's conduct that he or she is dealing with an agent or that an agent is acting within the scope of his or her authority when in fact the agent is not so doing, the principal or ostensible principal is under an obligation to dispel the belief. If the principal fails to do so and the third party suffers detriment as a result of the apparent agency, a court may find agency by estoppel and thus hold the principal liablein other words, responsible for his or her own inaction.
3. The same reasoning applies here as in the answer to question 2 above. It would be unfair to hold a person liable for an action if that person was in no way responsible for the action. For example, Becky represents to Inga that she is the agent of Andrea, a dress designer. Inga believes Becky and gives Becky a check for 1,000 as a deposit on a dress to be designed and created by Andrea. Becky absconds with the check, and Inga seeks to hold Andrea liable under a theory of agency by estoppel. Andrea knows neither Inga nor Becky, has no knowledge of the transaction, and therefore could in no way have been responsible foror preventedthe fraud. Obviously, to hold Andrea liable in this situation would be totally unfair.

Answer to Question 2

FALSE

[Bernana]

Excellent

[LVPMS]

Gracias!