No. 89-558 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

THE ESTATES OF ALFRED L. MILLIRON 

and ANNA B. MILLIRON, 

Plaintiffs and Appellant, 

WALTER FRANCKE, M.D., and 

ROUNDUP MEMORIAL HOSPITAL, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Roy C. Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: I _ 

! - -- Dane C. Schofield; Peterson, Schofield & Leckie, 

Billings, Montana 

For Respondent: 

Filed: 

Richard F. Cebull; Anderson, Brown, Gerbase, Cebull, 

Fulton, Billings, Montana 

L.j -.< 

. *. - - Joseph P. Hennessey, Billings, Montana J 

Submitted on Briefs: April 19, 1990 

Decided: June 1, 1990 

," :+ r '"1 . 

Clerk 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal by the estates of the decedent plaintiff and 

his now deceased wife arising out of a medical malpractice claim. 

The plaintiff estates appeal the order of the Montana Fourteenth 

Judicial District Court, Musselshell County, granting summary 

judgment to the defendant Roundup Memorial Hospital on the grounds 

that it cannot be held vicariously liable for the alleged 

negligence of an independent contractor radiologist under the facts 

of this case. We affirm. 

Appellants raise the following issues on appeal: 

(1) Did the District Court err in concluding that there were 

no genuine issues of material fact regarding ostensible agency as 

a theory for imposing vicarious liability upon the hospital for 

the negligence of a radiologist? 

(2) Did the District Court err in concluding that the 

hospital cannot be held liable for alleged negligent radiology 

services supplied by an independent contractor under the theory of 

nondelegable duty? 

Alfred Milliron was an out-patient at the Roundup Memorial 

Hospital on December 6, 1984. He was referred to the hospital and 

the radiologist who practiced there, Dr. Francke, by his family 

physician, Dr. Moshman, for evaluation of prostatitis and 

obstructive uropathy. The method used by the radiologist is called 

an I.V.P. (intravenous pyelogram.) This is a special x-ray 

procedure involving the injection of a dye which has certain 

hazards that were allegedly explained to the patient by Dr. 

2 
Francke. 

After injection of this dye, Alfred Milliron suffered a 

reaction and eventually lost consciousness and experienced 

cardiopulmonary difficulties. He was successfully resuscitated 

but sustained serious neurological deficit. After filing of this 

lawsuit, Mr. Milliron died and subsequently his wife, who was added 

as plaintiff in an amended complaint also died. A further 

amendment substituted the estates of the Millirons as plaintiffs 

in this case. 

Plaintiffsf amended complaint alleged several different 

theories to support imposition of liability on the hospital. The 

only remaining theories of concern to this appeal are vicarious 

liability based on apparent or ostensible agency or the existence 

of a nondelegable duty. 

I. 

As the District Court noted, summary judgment is never to be 

used as a substitute for trial if a genuine issue of material fact 

exists. Rule 56, M.R.Civ.P., Reaves v. Reinbold (1980), 189 Mont. 

284, 287, 615 P.2d 896, 898. On the other hand, If[w]hen the record 

discloses no genuine issue of material fact, the party opposing 

summary judgment has the burden of presenting evidence of a 

material and substantial nature raising a genuine issue of material 

fact. If Montana Deaconess Hospital v. Gratton (1976) , 169 Mont. 

185, 189, 545 P.2d 670, 672. 

The plaintiffs rely heavily on Kober & Kryss v. Billings 

Deaconess Hospital (1966), 148 Mont. 117, 417 P.2d 476, in 
maintaining that material fact issues exist concerning an agency 

relationship between the radiologist and the hospital. In Kober, 

we held that summary judgment was inappropriate because 

[wlhether Dr. Stewart was an independent contractor or 

an agent of the hospital as to Mr. Kryss will, in all 

likelihood, be determined by the trier of fact as the 

issue is developed. 

417 P.2d at 480. However, Kober can be distinguished from the 

present case. Kober involved interpretation of a contract between 

the hospital and a radiology clinic that failed to specify if the 

head radiologist provided by the clinic was an independent 

contractor or agent of the hospital: 

. . . this Court cannot determine from the contract 

whether Dr. Stewart is an independent contractor or an 

agent of the hospital. Nowhere in the contract is the 

director specifically labeled an independent contractor. 

417 P.2d at 479. Thus, in Kober there was at least a genuine 

issue of material fact regarding the existence of an actual agency 

relationship between the parties. Here, the radiologist is 

specifically labeled an independent contractor in the radiology 

agreement between him and the hospital. Thus the plaintiffs are 

arguing the existence of an '*apparentu1 or llostensible*l agency 

rather than an actual agency relationship. Furthermore, in Kober 

the plaintiff was admitted to the hospital for other reasons and 

subsequently was sent to the hospital's radiology department for 

x-rays as an in-patient. Here, the decedent was an out-patient 

who was sent to the hospital by his own doctor in order to have xrays done under the supervison of the consulting radiologist. 

Nevertheless, examining the facts of this case in light of 
Kober, summary judgment would be improper if there exists any 

genuine issue of material fact regarding the existence of an 

I1apparentn or "ostensiblet1 agency between the hospital and the 

radiologist. See Burkland v. Electronic Realty Associates, Inc., 

(1987), 228 Mont. 113, 117, 740 P.2d 1142, 1145. We conclude that 

the plaintiffs have failed to demonstrate any material factual 

disputes regarding the existence of such an agency relationship in 

this case. 

First, we note that plaintiffs urge us to adopt the rule of 

liability under an ostensible agency set forth in 5 429 of the 

Restatement 2d of Torts. We find it unnecessary to adopt such a 

rule in this case, as liability based on ostensible agency is 

already specifically covered by statute, 5 28-10-103, MCA, which 

provides : 

28-10-103. Actual versus ostensible agency. An agency 

is either actual or ostensible. An agency is actual when 

the agent is really employed by the principal. An agency 

is ostensible when the principal intentionally or by want 

of ordinary care causes a third person to believe another 

to be his agent who is not really employed by him. 

(Emphasis added.) 

Section 28-10-103, MCA. The plaintiffs allege the following facts 

as a basis for a finding of ostensible agency: the hospital agreed 

to provide adequate space, equipment, and personnel for the 

radiology department; it sent and collected bills on behalf of the 

radiologist; and provided the radiologist with an office at the 

hospital. The radiologist had no separate office in Roundup, 

rather he privately consulted in several hospitals and would travel 

around to those hospitals, including Roundup Memorial, performing 
work as a consulting radiologist. These allegations do not 

demonstrate intentional conduct on the part of the hospital that 

caused the Millirons to believe the radiologist to be an agent of 

the hospital. See e.s., Burkland, 740 P.2d 1142. Nor were there 

any act or acts amounting to want of ordinary care by the hospital 

that led the Millirons to believe the radiologist to have been an 

agent of the hospital. See e. s., Elkins v. Husky Oil (1969) , 153 

Mont. 159, 455 P.2d 329. 

To the contrary, the situation here---where a small hospital 

in a rural community obtains an independent contractor as a 

specialist, the specialist rotates between several small hospitals 

and the hospitals provide the doctor with an office at the 

hospital---is an ordinary practice in smaller communities 

throughout Montana. Providing these traveling physicians with 

offices at the hospital simply helps ensure that these smaller and 

more remote communities will be provided with adequate medical care 

and is not a sufficient factual basis to establish an agency 

relationship. Moreover, providing adequate space, equipment, and 

personnel is nothing more than what a hospital provides other 

doctors for the treatment of their patients. 

"Where the undisputed evidence concerning the status of the 

parties defendant to each other is reasonably susceptible of but 

a single inference, the question of their legal relationship . . 

. is one purely of law. Elkins, 455 P.2d at 332. The plaintiffs 

failed to present sufficient evidence that would give rise to a 

genuine issue of material fact regarding ostensible agency, thus 
the District Court's grant of summary judgment to the defendant 

hospital on this issue was proper. 

The plaintiffs also contend that they are entitled to partial 

summary judgment on the issue of the hospitals vicarious liability 

under the theory that the hospital had a nondelegable duty to 

provide safe radiology services to the public. 

The plaintiffs1 contention makes an erroneous assumption that 

under these facts the hospital had the primary duty in the first 

instance in providing treatment to a doctor's patient. This 

cannot be assumed. Generally, a hospital is not liable for the 

negligence of physicians functioning as independent contractors. 

See Annotation, Liability of Hospital or Sanitarium for Neslisence 

of Physician or Surseon, 51 A.L.R.4th 235, 5 5. This general rule 

llreflect[s] the belief that a physician's knowledge and services 

are so specialized and personal that he cannot be controlled by 

a layman in the practice of his calling. . . . See 40 Am. Jur. 2d, 

Hospitals and As~lums, § 28, p.872. Thus, under these facts, the 

doctor rather than the hospital, has the primary duty to provide 

for treatment of his patient. 

The theory of nondelegable duty is an established exception 

to the general rule that an employer is not liable for the 

negligence of independent contractors. See Stepanek v. Kober 

construction Co. (1981), 191 Mont. 430, 434, 625 P.2d 51, 53; see 

also, senerally W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser 

and Keeton on the Law of Torts, 5 71 at 511-512 (5th ed. 1984). 
In alleging that such an exception exists in this case, 

plaintiffs rely solely on Jackson v. Power (Alaska 1987), 743 P.2d 

1376, where the Alaska Supreme Court held that a hospital licensed 

as a general acute care facility had a duty to provide physicians 

for emergency room care that was nondelegable. Jackson appears 

to stand alone as the only case applying the nondelegable duty 

exception to employer nonliability to a hospital for a doctor's 

negligence. Furthermore, Jackson was limited to emergency room 

services and did not extend to the situation where a patient was 

treated by his or her own doctor in an emergency room provided by 

the hospital for the convenience of doctors. Rather, the decision 

only applies to situations where a patient comes to the hospital, 

as an institution, seeking emergency room services and is treated 

by a physician provided by the hospital. Jackson, 743 P. 2d at 

1385. The present case is distinguishable from Jackson. This 

case does not involve emersencv radiology services at an acute care 

facility, and furthermore, here the patient knew who the treating 

radiologist would be prior to the procedure. 

The order of the District Court granting summary judgment to 

Roundup Memorial hospital is 

AFFIRMED. 

, - 

Justice 

We Concur: