OTLA Trial Lawyer Fall 2020

58 Trial Lawyer • Fall 2020 subject to Silverton’s peer review process and bylaws, received compensation from Silverton when he was a doctor on call, but is not a Silverton Hospital employee. When the plaintiff sought emergency treatment, Bernardo was on call and acted as her treating physician. He was highly recommended as a surgeon by the nurses on staff, and the plaintiff saw his picture on the wall, identifying him as “Chief of Surgery.” She thereafter fol- lowed his recommendation to have him perform a laproscopic colectomy surgery to address her diverticulitis. During the surgery, Bernardo lacerated several major and minor veins, ultimately requiring the plaintiff to be airlifted to OHSU for critical care. The plaintiff suffered sig- nificant damage to several major blood vessels and her liver as a result of the vascular injuries caused by Bernardo. The plaintiff filed a negligence action against both Bernardo and Silverton Hospital. Among other things, the trial court granted Silverton Hospital’s sum- mary judgment motion against the plaintiff ’s vicarious liability claim alleg- ing theories of actual and apparent agency, and its Rule 21 A(8) motion to dismiss the plaintiff ’s claim for the neg- ligent hiring, retention, and supervision of Bernardo, which included specifica- tions of a negligent grant of surgical privileges and negligent administration of its peer review process. The plaintiff appealed those dismissals. On appeal, the court concluded the trial court erred in granting summary judgment against the plaintiff ’s vicarious liability claim against the hospital. Al- though the evidence of the hospital’s requisite control over Bernardo’s practice was insufficient under an actual agency theory, the court concluded the plaintiff ’s evidence of the hospital’s holding itself out as a direct provider of care, on which she reasonably relied, created a fact issue for the jury regarding the plaintiff ’s apparent agency theory of vicarious lia- bility. The court further found “the trial court erred in dismissing the [negligence] claims * * * relating to Silverton Hospi- tal’s granting or revocation of Bernardo’s general or specific surgical privileges, its supervision of Bernardo’s surgical prac- tices, and its peer review process that reviewed Bernardo’s surgeries and out- comes.” With respect to the privileges that will apply to peer review documents and processes, the court clarified, on remand, the trial court would be permit- ted to review documents in camera to determine if the information is relevant to the hospital’s defense. The court may compel arbitration un- der defendants’ independent contractor agreement even though stipulated as invalid and unenforceable under fed- eral law by consent judgment; arbitra- tion provisions of agreement remain enforceable as neither procedurally nor substantively unconscionable, and any challenge to the validity of the indepen- dent contractor agreement under state law is for the arbitration panel to decide. Gist v. Zoan Management, Inc. , 305 Or App 708 (2020), DeVore, J. Lisa T. Hunt, Phil Goldsmith, David Schuck, and Stephanie Brown represented the putative class action plaintiffs. Plaintiff Jeff Gist was a driver for the multi-state package delivery defendants, which required its delivery drivers to execute an independent contractor agreement as a condition of employment, rather than afford them the protections of Oregon wage and hour law as employ- ees. The plaintiff filed this putative class action on behalf of himself and other similarly situated drivers, alleging violations of that law, nonpayment of wages due and entitlement to statutory penalties and attorney fees. The defen- dants sought to enforce the arbitration provisions of the independent contractor agreement and moved the trial court to compel the plaintiff to arbitrate his claims individually. The plaintiff argued Sheets Continued from p 57