CACI No. 3714. Ostensible Agency - Physician-Hospital Relationship - Essential Factual Elements
Judicial Council of California Civil Jury Instructions (2023 edition)
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3714.Ostensible Agency - Physician-Hospital
Relationship - Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of physician]’s [insert tort theory, e.g., negligence].
[Name of plaintiff] also claims that [name of hospital] is responsible for the
harm because [name of physician] was acting as its
[agent/employee/[insert other relationship]] when the incident occurred.
If you find that [name of physician]’s [insert tort theory] harmed [name of
plaintiff], then you must decide whether [name of hospital] is responsible
for the harm. [Name of hospital] is responsible if [name of plaintiff] proves
both of the following:
1. That [name of hospital] held itself out to the public as a provider
of care; and
2. That [name of plaintiff] looked to [name of hospital] for services,
rather than selecting [name of physician] for services.
A hospital holds itself out to the public as a provider of care unless the
hospital gives notice to a patient that a physician is not an
[agent/employee] of the hospital. However, the notice may not be
adequate if a patient in need of medical care cannot be expected to
understand or act on the information provided. You must take into
consideration [name of plaintiff]’s condition at the time and decide
whether any notice provided was adequate to give a reasonable person in
[name of plaintiff]’s condition notice of the disclaimer.
New November 2021; Revised May 2022
Directions for Use
Use this instruction only if a patient claims that a hospital defendant is responsible
for a physician’s negligence or other wrongful conduct as an ostensible agent.
Sources and Authority
• Agency Is Actual or Ostensible. Civil Code section 2298.
• “Ostensible Agency” Defined. Civil Code section 2300.
• “Ostensible Authority” Defined. Civil Code section 2317.
• When Principal is Bound by Ostensible Agent. Civil Code section 2334.
• “Where a patient seeks to hold a hospital liable for the negligence of a
physician, the doctrine of ostensible agency is now commonly expressed as
having two elements: ‘(1) conduct by the hospital that would cause a reasonable
person to believe that the physician was an agent of the hospital, and (2) reliance
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on that apparent agency relationship by the plaintiff.’ Generally, the first element
is satisfied ‘when the hospital “holds itself out” to the public as a provider of
care,’ ‘unless it gave the patient contrary notice.’ Nonetheless, a hospital’s
‘contrary notice’ may be insufficient ‘to avoid liability in an emergency room
context, where an injured patient in need of immediate medical care cannot be
expected to understand or act upon that information.’ Reliance upon an apparent
agency is demonstrated ‘when the plaintiff “looks to” the hospital for services,
rather than to an individual physician.’ Ultimately, ‘there is really only one
relevant factual issue: whether the patient had reason to know that the physician
was not an agent of the hospital. As noted above, hospitals are generally deemed
to have held themselves out as the provider of services unless they gave the
patient contrary notice, and the patient is generally presumed to have looked to
the hospital for care unless he or she was treated by his or her personal
physician. Thus, unless the patient had some reason to know of the true
relationship between the hospital and the physician - i.e., because the hospital
gave the patient actual notice or because the patient was treated by his or her
personal physician - ostensible agency is readily inferred.’ ” (Markow v. Rosner
(2016) 3 Cal.App.5th 1027, 1038 [208 Cal.Rptr.3d 363], internal citations
omitted.)
• “It is well established in California that a hospital may be liable for the
negligence of physicians on the staff, unless the hospital has clearly notified the
patient that the treating physicians are not hospital employees and there is no
reason to believe the patient was unable to understand or act on the information.
This rule is founded on the theory of ostensible agency.” (Wicks v. Antelope
Valley Healthcare Dist. (2020) 49 Cal.App.5th 866, 882 [263 Cal.Rptr.3d 397].)
• “[T]he adequacy of the notice is only one of the many fact questions that arise
under ostensible agency. The jury must also determine whether the patient
entrusted herself to the hospital, whether the hospital selected the doctor, and
whether the patient reasonably believed the doctor was an agent of the hospital.”
(Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631, 641 [188
Cal.Rptr.3d 246].)
• “Effectively, all a patient needs to show is that he or she sought treatment at the
hospital, which is precisely what plaintiff alleged in this case. Unless the
evidence conclusively indicates that the patient should have known that the
treating physician was not the hospital’s agent, such as when the patient is
treated by his or her personal physician, the issue of ostensible agency must be
left to the trier of fact.” (Mejia v. Community Hospital of San Bernardino (2002)
99 Cal.App.4th 1448, 1458 [122 Cal.Rptr.2d 233].)
• “Neither Mejia,Whitlow, nor Markow is factually on point with this case. Yet all
three opinions inform our decision in this case. They rest on the same principle
of California law, that although a hospital may not control, direct or supervise
physicians on its staff, a hospital may be liable for their negligence on an
ostensible agency theory, unless (1) the hospital gave the patient actual notice
that the treating physicians are not hospital employees, and (2) there is no reason
CACI No. 3714 VICARIOUS RESPONSIBILITY
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to believe the patient was unable to understand or act on the information, or (3)
the patient was treated by his or her personal physician and knew or should have
known the true relationship between the hospital and physician.” (Wicks, supra,
49 Cal.App.5th at p. 884.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 1-4
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.45 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13 et seq.
(Matthew Bender)
3715-3719. Reserved for Future Use
VICARIOUS RESPONSIBILITY CACI No. 3714
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