- Court: Oregon Court of Appeals
- Area(s) of Law: Tort Law
- Date Filed: 03-08-2018
- Case #: A161012
- Judge(s)/Court Below: Shorr, J for the Court; Armstrong, P.J.; & Tookey, J.
- Full Text Opinion
Towner appealed the trial court’s dismissal of her medical malpractice claims against Silverton Health (Silverton). In assignments of error, Towner contended that (1) the trial court erred in granting Silverton’s motion to strike an allegation, maintaining that because of its duty to dispense quality care, Silverton was vicariously liable for surgeon; (2) the court erred in dismissing allegations of Silverton’s negligence in authorizing surgeon to perform surgery; and (3) the court erred in granting Silverton summary judgement because Silverton was vicariously liable for the surgeon’s negligence. The elements of actual agency are that “the principle ha[s] a right to control the acts of its agent,” and “both parties must also agree that the agent will act on the principal’s behalf.” Eads v. Borman, 234 Or App 324, 227 P3d 826 (2010), aff’d, 351 Or 729, 277 P3d 503 (2012). Because Silverton advertised surgeon as “chief of surgery” and because Towner relied on the notion that Silverton was responsible for her care, the trial court erred in regard to Towner’s “apparent agency theory of vicarious liability.” Further, ORS 41.675(3) does not prevent a court from reviewing relevant documents to learn whether the peer review data is applicable to a party’s defense. Towner’s contentions are insufficient to challenge the grant of Silverton's motion to strike because ORS 441.055 does not require holding hospitals liable in instances were nonemployees fail in dispensing “quality care” when attending to hospital patients. Reversed and remanded.