## Facts

- Two medical-negligence actions were consolidated involving alleged permanent injuries to newborns following care at a university-affiliated hospital.
- In one case, a pregnant patient received an ultrasound and later delivered at the hospital; complications allegedly led to the newborn suffering seizures and a stroke, causing lasting neurological injuries.
- In the other case, a pregnant patient underwent surgery at the hospital; a post-operative infection allegedly triggered premature labor and resulting permanent injuries to the infant.
- In both cases, the treating physicians were employed by the university’s Board of Trustees and practiced at the hospital through an affiliation arrangement rather than as hospital employees.
- The plaintiffs sought to hold the hospital vicariously liable for the physicians’ alleged negligence under theories of actual agency and apparent agency.
- The patients signed hospital paperwork stating that “faculty physicians and resident physicians who provide treatment in the hospital are not employees of the hospital.”

## Issues

1. Whether the physicians were actual agents or employees of the hospital, permitting vicarious liability based on actual agency.
2. Whether the hospital could be vicariously liable under apparent agency where hospital conduct could cause a reasonable patient to believe the physicians were hospital agents and the patient relied on that appearance.

## Decision

- The court affirmed summary judgment for the hospital on actual agency because the physicians were employed by the university Board of Trustees and the hospital lacked the right to control the method and manner of the physicians’ work.
- The court reversed summary judgment for the hospital on apparent agency and remanded, holding that the evidence raised triable factual questions about reasonable patient belief and reliance.
- The court adopted a two-part apparent-agency test requiring (1) hospital acts or omissions that would cause a reasonable person to believe the physician was the hospital’s agent, and (2) patient reliance on that apparent relationship.
- The court held the signed disclaimer was relevant evidence but not conclusive as a matter of law because a jury could question whether a reasonable patient would understand and be guided by the employment-status language in context.
- A separate opinion agreed on actual agency but would have affirmed on apparent agency, treating the disclaimer and lack of reliance as dispositive.

## Legal Principles

- Actual agency for hospital vicarious liability turns on the principal’s right to control the agent’s work; formal employment and control evidence may defeat actual-agency claims as a matter of law.
- A hospital may be vicariously liable for a physician’s negligence under apparent agency if:
  - the hospital’s acts or omissions would cause a reasonable person to believe the physician was the hospital’s agent; and
  - the patient relied on that appearance in accepting treatment.
- Written disclaimers that physicians are not hospital employees are probative but do not automatically negate apparent agency where other hospital conduct and patient understanding create a factual dispute.
- Apparent-agency questions commonly present fact issues for the jury when the record supports competing inferences about hospital representations and patient reliance.

## Conclusion

The court barred vicarious liability against the hospital on an actual-agency theory but allowed the plaintiffs to proceed to a jury on apparent agency, holding that hospital representations and patient reliance may support liability for nonemployee physicians and that disclaimer language alone does not necessarily resolve the issue as a matter of law.


Burless v. W. Va. Univ. Hosps., Inc., 215 W. Va. 765, 601 S.E.2d 85 (W. Va. 2004)