Reference no: EM132155431

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 Tobes—whom she had never met be­fore—for 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 representa­tion by the hospital that medical treatment would be performed by physicians working therein, an agency by estoppel can be found.  [Brackens v. Detroit Osteopathic Hospital, 174 Mich.App. 290, 435 N.W.2d 472 (1989)]

1. Brackens testified that during her confinement in the hospital, she at all times believed that Drs. Taras and Tobes were hospital physicians employed by the hos­pi­tal. Do you think that, in this case, an agency by estoppel should be found?  In your opinion, would such a finding be a fair solution?  Why or why not?

2. What general ethical principle or principles underlie the theory of agency by estoppel?

3. Why must the principal in some way be responsible for creating the appear­ance of an agency before agency by estoppel will be found?  What ethical consid­erations underlie this requirement?