Medical malpractice: Who do you sue in the case of medical error?

General problem

Most people are familiar with the concept of medical malpractice, which occurs when a health care professional, such as a doctor or hospital, causes injuries to a patient through a negligent (or careless) act or omission. When such injuries occur, the injured patient may file a lawsuit against the person causing the injury. The question then arises, however, who is the injuring party?

This question may arise when you go to a hospital for a medical treatment or surgery and there are any number of people involved in your treatment, and you later suffer a damaging injury. Who do you sue? The head surgeon? The nurses? How about the hospital itself? The answer to this question is important, because if do not sue the correct party within the statutory required length of time, you may lose your right to sue anyone and collect damages for your injuries.

Recent Indiana case

A recent Indiana court case illustrates the difficulty of this situation. In 2005, in Columbus Regional Hosp. v. Amburgey, a woman was admitted to a hospital to adjust her pump catheter, a device used to treat chronic pain. After the procedure, the patient suffered a seizure. A doctor who was an employee of a company which provided anesthesia services to the hospital responded and consulted with another doctor, a neurologist whose wages were paid by a sleep sciences company. The patient later died.

In 2007, the husband filed a negligence claim against the hospital and the doctors actually involved in the surgery. The husband later alleged that the hospital did not inform him that any medical treatment provided to the patient was being performed by an independent contractor (that is, by a person not employed by the hospital), and requesting that the anesthesiologist and the neurologist should therefore be deemed to be the apparent agents (or employees) of the hospital.

The hospital argued that the two parties were always independent contractors (not agents), that the husband failed to name either of these parties when he filed suit, and that the statute of limitations (the statutory time period within which a negligence plaintiff has to file suit) had run on any claims against these two parties.

The trial court said that a jury had to resolve the issue of agency, but the hospital immediately filed an appeal, arguing that that neither the anesthesiologist nor neurologist were, legally, agents of the hospital, who could not therefore be held liable.

In 2012, the appellate court ruled that the running of the statute of limitations with respect to the two physicians who treated the patient after her surgery did not preclude a complaint against the hospital on the theory of apparent authority, quoting from the Restatement (Second) of Agency which provides that: "One who represents that another is his... agent and... causes a third person... to rely upon the care or skill of such apparent agent is subject to liability...", which is what happened here, when the hospital never informed the husband that any care provided to his wife was performed by independent contractors (persons not employed by the hospital) and the husband justifiably believed that the two after-care physicians were the hospital's employees.


If you are injured while in the hospital, and you are not sure who exactly is the cause of the injury, or who exactly you might file a negligence suit against, you should immediately contact an experienced malpractice attorney, who can investigate the facts of your case and determine the answers to these questions.