Relationship Between Hospital and Health Care Provider Prerequisite to Liability; Notice Regarding Independent Contractor Status; Factors for Consideration in Determining Status

  1. Law
  2. Georgia Code
  3. Torts
  4. Imputable Negligence
  5. Relationship Between Hospital and Health Care Provider Prerequisite to Liability; Notice Regarding Independent Contractor Status; Factors for Consideration in Determining Status

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  1. As used in this Code section, the term:
    1. "Health care professional" means a professional licensed as an audiologist, chiropractor, clinical social worker, dentist, dietitian, medical doctor, marriage and family therapist, registered professional or licensed practical nurse, occupational therapist, optometrist, osteopathic physician, pharmacist, physical therapist, physician assistant, professional counselor, podiatrist, psychologist, radiological technician, respiratory therapist, or speech-language pathologist.
    2. "Hospital" means a facility that has a valid permit or provisional permit issued by the Department of Community Health under Chapter 7 of Title 31.
  2. Notwithstanding the provisions of Code Section 51-2-5, no hospital which complies with the notice provisions of either subsection (c) or subsection (d) of this Code section shall be liable in a tort action for the acts or omissions of a health care professional unless there exists an actual agency or employment relationship between the hospital and the health care professional.
  3. The hospital shall post a notice in the form and manner described herein. Such notice shall:
    1. Be posted conspicuously in the hospital lobby or a public area of the hospital;
    2. Contain print at least one inch high; and
    3. Provide language substantially similar to the following:

      "Some or all of the health care professionals performing services in this hospital are independent contractors and are not hospital agents or employees. Independent contractors are responsible for their own actions and the hospital shall not be liable for the acts or omissions of any such independent contractors."

  4. The hospital shall have the patient or the patient's personal representative sign a written acknowledgment that contains language substantially similar to that set forth in paragraph (3) of subsection (c) of this Code section.
  5. The notice required in this Code section shall be sufficient if it meets the requirements of either subsection (c) or subsection (d) of this Code section even if the patient or the patient's personal representative did not see or read such notice for any reason, including but not limited to medical condition or language proficiency.
  6. Whether a health care professional is an actual agent, an employee, or an independent contractor shall be determined by the language of the contract between the health care professional and the hospital. In the absence of such a contract, or if the contract is unclear or ambiguous, a health care professional shall only be considered the hospital's employee or actual agent if it can be shown by a preponderance of the evidence that the hospital reserves the right to control the time, manner, or method in which the health care professional performs the services for which licensed, as distinguished from the right to merely require certain definite results.
  7. If the court finds that there is no contract or that the contract is unclear or ambiguous as to the relationship between the hospital and health care professional, the court shall apply the following:
    1. Factors that may be considered as evidence the hospital exercises a right of control over the time, manner, or method of the health care professional's services include: the parties believed they were creating an actual agency or employment relationship; the health care professional receives substantially all the employee benefits received by actual employees of the hospital; the hospital directs the details of the health care professional's work step-by-step; the health care professional's services are terminable at the will of the hospital without cause and without notice; the hospital withholds, or is required to withhold, federal and state taxes from the remuneration paid to the health care professional for services to the patients of the hospital; and factors not specifically excluded in paragraph (2) of this subsection; and
    2. Factors that shall not be considered as evidence a hospital exercises a right of control over the time, manner, or method of the health care professional's services include: a requirement by the hospital that such health care professional treat all patients or that any health care professional or group is obligated to staff a hospital department continuously or from time to time; the hospital's payment to the health care professional on an hourly basis; the provision of facilities or equipment by the hospital; the fact a health care professional does not maintain a separate practice outside the hospital; the source of the payment for the professional liability insurance premium for that health care professional; the fact that the professional fees for services are billed by the hospital; or any requirement by the hospital that such health care professional engage in conduct required to satisfy any state or federal statute or regulation, any standard of care, any standard or guideline set by an association of hospitals or health care professionals, or any accreditation standard adopted by a national accreditation organization.

(Code 1981, §51-2-5.1, enacted by Ga. L. 2005, p. 1, § 11/SB 3; Ga. L. 2008, p. 12, § 2-38/SB 433; Ga. L. 2009, p. 859, § 3/HB 509.)

Editor's notes.

- Ga. L. 2005, p. 1/SB 3, § 1, not codified by the General Assembly, provides that: "The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act."

Ga. L. 2005, p. 1, § 14/SB 3, not codified by the General Assembly, provides for severability.

Ga. L. 2005, p. 1, § 15(b)/SB 3, not codified by the General Assembly, provides that this Code section shall apply only with respect to causes of action arising on or after February 16, 2005, and any prior causes of action shall continue to be governed by prior law.

Law reviews.

- For article on 2005 enactment of this Code section, see 22 Ga. St. U.L. Rev. 221 (2005). For article, "State of Emergency: Why Georgia's Standard of Care in Emergency Rooms is Harmful to Your Health," see 45 Ga. L. Rev. 275 (2010). For annual survey on torts law, see 69 Mercer L. Rev. 299 (2017).

JUDICIAL DECISIONS

Posting of notice by hospital sufficient.

- Summary judgment was properly granted to a hospital in a medical malpractice action based on vicarious liability as the widow of a deceased patient failed to present any evidence to counter the testimony provided by the hospital that the notice was posted conspicuously in a public area of the hospital, as statutorily required, regarding the independent status of certain health care professionals. Hunter v. Emory-Adventist, Inc., 323 Ga. App. 537, 746 S.E.2d 734 (2013).

Impact of doctors as independent contractors to hospital.

- In a complaint alleging professional negligence against two doctors, as well as imputed liability against the medical center, the trial court erred in granting summary judgment to the medical center based on the court's finding that the two doctors were independent contractors because the contractual relationships between the doctors' physician groups who had contracts with the medical center did not fall under O.C.G.A. § 51-2-5.1; furthermore, the trial court did not conduct an analysis on whether an agency relationship existed between the medical center and the doctors. Thomas v. Tenet Healthsystem GB, Inc., 340 Ga. App. 78, 796 S.E.2d 307 (2017).

Cited in Graham v. HHC St. Simons, Inc., 322 Ga. App. 693, 746 S.E.2d 157 (2013).


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