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Steven J. Klearman
Steven J. Klearman
Attorney • (800) 880-5297

No Nondelegable Duty for Hospitals in Nevada

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In general, employers are not vicariously liable for the acts of independent contractors. However, an exception exists where an absolute nondelegable duty is imposed. If an absolute nondelegable duty were to exist in Nevada, a hospital would remain primarily responsible for negligence of independent contractor doctors.

In Renown Health v. Vanderford, 126 Nev. Adv. Op. No. 24 (July 1, 2010), the Nevada Supreme Court declined to impose such a duty on hospitals in Nevada. The Court analyzed Nevada statutes, public policy, common law principles, and standards created by the Joint Committee on the Accreditation of Health Organizations (JCAHO) standards, and ultimately opted not to create a nondelegable duty for hospitals in Nevada.

However, the Court clarified that hospitals may be held liable for the negligence of independent contractor doctors under the ostensible agency theory. The theory applies when a patient goes to the hospital and the hospital selects the doctor to treat the patient, such that it is reasonable for the patient to assume the doctor is an agent of the hospital. The Court identified the following factors to determine whether the ostensible agency theory should be applied: (1) whether the patient entrusted herself to the hospital, (2) whether the hospital selected the doctor, (3) whether the patient reasonably believed the doctor was an agent of the hospital, and (4) whether the patient had notice of the doctor’s independent contractor status.

In a dissenting opinion, Justice Cherry wrote that he would adopt a nondelegable duty for hospitals in Nevada, based on public policy. Justices Saitta and Gibbons agreed.