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You go to the hospital emergency room, and the attending doctor is negligent, resulting in an injury or, even worse, a relative dies. If your injuries or a relatives death warrant more than 1 million dollars you better hope the doctor is an employee or agent of the hospital, the deeper pocket. Chances are, he is not an employee but just on staff with privileges. This poses problems in serious injury and death cases because oftentimes 1 million, the amount of insurance most doctors carry, is not enough. A vigilant injury lawyer must find out, is the hospital’s insurance available to compensate for the wrong?

Missouri courts have listed several factors to aide in deciding whether or not a doctor is acting as an agent of a principal, and therefore, within the course and scope of the agency with a hospital or health care organization. The factors are listed and applied in Keller v. Missouri Baptist Hospital, 800 S.W.2d 35, 38 & 39 (Mo. Ct. App. 1990) and include the following:

A. Control over the physician’s practice;
B. The contract requires full time employment;
C. The parties to the contract contemplated a long term relationship;
D. Full time employment by one employer;
E. Right to terminate physician per the agreement; and
F. Principal undertaking to provide medical malpractice insurance.

If these factors applied to an individual case demonstrate that the doctor was an agent of another entity and acting within the course and scope of his agency, then yes, more insurance coverage is out there.

I have handled this issue before and the determination is very fact specific. Healthcare organizations are legally separating themselves from the doctors that a lay person would think is an employee or agent in order to avoid and limit legal liability for their mistakes. With the addition of the 2005 Tort Reform laws passed by Gov. Blunt, the desired effect of shielding health care professionals from liability for their negligence is quickly becoming a dire but true reality of doctors and hospitals being above the law.

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