N.C.P.I.—Civil 809.66

NOTE WELL: This instruction previously was labeled

“N.C.P.I.–Civil 809.65A Medical Negligence- Health

Care Provider's Liability For Acts of Non-Employee

Agents—Respondeat Superior— Apparent Agency.” It

has been revised and renumbered as N.C.P.I.-Civil

809.66.

The (state number) issue reads:

“Was (state name of health care provider or other person actually

performing service)2 the apparent agent of the defendant (state name of

institutional health care provider) at the time the (state applicable health

care service) was performed?”3

You will answer this issue only if you have answered issue (state

issue number) “Yes” in favor of the plaintiff.

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, that

(state name of health care provider or other person actually performing

service) was the defendant, (state name of institutional health care

provider)'s, apparent agent at the time the (state applicable health care

service) was performed.

Ordinarily, [a health care provider] [an institutional health care

provider] [a corporate health care provider] [a health care provider

association]4 such as the defendant is not liable for the negligence of

(state applicable category of health care provider, e.g., physicians,

nurses, etc., or other persons)5 who are not [the health care provider’s]

[its] employees. A person is an employee when the hiring party retains

the right and power to control the method, manner and means by which

the details of the work are performed rather than the right simply to

require certain definite results.6

However, [a health care provider] [an institutional health care

provider] [a corporate health care provider] [a health care provider

association] may be responsible for the acts of (state applicable category

of health care provider) if those (state applicable category of health care

provider) are the apparent agents of the health care provider at the time

of such acts.7

On this issue the plaintiff must prove, by the greater weight of the

evidence, the following three things:8

First, that the defendant has held itself out as providing medical

services, such as (state applicable medical services, e.g.,

anesthesiology, radiology, etc.), as opposed simply to providing facilities

for the performance of medical services.9 The holding out of itself by the

defendant as providing medical services, such as (state applicable

medical services, e.g., anesthesiology, radiology, etc.), may be by

express verbal representations or by conduct, or it may be general and

implied10 from the circumstances.

Second, that the plaintiff looked to the defendant and not to (state

name of health care provider or other person actually performing service)

to perform those services.11

And Third, that the plaintiff accepted those services in the

reasonable belief that the services were being rendered by the defendant

or its employees. [A health care provider such as the defendant may

avoid liability by providing meaningful notice to a patient that care is

being provided by an independent contractor.12]

In determining whether the plaintiff reasonably believed that the

(state applicable category of medical services) services were being

rendered by the defendant, you must consider whether, under the totality

of factors13 present in this particular case, a reasonable person in the

same or similar

circumstances as the plaintiff would have believed that the (state

applicable category of medical services) services were being rendered by

the defendant.14 As applied to this case, the factors may include:

[the conduct of the defendant, including the defendant's actions or

inaction on its part]15

[whether the defendant gave meaningful notice to the plaintiff that

(state name of health care provider or other person actually performing

service) was an independent contractor]16

[whether the plaintiff acknowledged receipt of notice that (state

name of health care provider or other person actually performing service)

was an independent contractor]

[whether the plaintiff, when receiving notice that (state name of

health care provider or other person actually performing service) was an

independent contractor, had an adequate opportunity to make an

informed choice to accept or reject (state name of health care provider or

other person actually performing service)'s services, such as in the case

of a medical emergency]17

[whether the plaintiff had any choice in the selection of the

provider of (state applicable category of medical services) services]18

[state any other applicable factor arising from the evidence].

Finally, as to this (state number) issue on which the plaintiff has

the burden of proof, if you find, by the greater weight of the evidence,

that, at the time the (state applicable health care service) was

performed, the defendant held itself out as providing medical services,

that the plaintiff looked to the defendant rather than to (state name of

health care provider or other person actually performing service) to

perform those services, and that the plaintiff accepted those services in

the reasonable belief that the services were being performed by the

defendant or its employees, then it would be your duty to answer this

issue “Yes” in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the defendant.