The precise issue has not been decided in Oregon. However, in Giusti v. Weston Co., 165 Or. 525, 108 P.2d 1010 (1941), the Supreme Court considered whether a hospital association that had contracted to furnish medical services to a high school was liable for the negligence of the physicians that it had employed to perform those services. It stated: "It is argued that a physician, by the very nature of the services he renders, is not subject to the control of those who employ him, and, therefore, that he must be regarded as an independent contractor and not as a servant.
Uncertainty as to the amount of damages will not always prevent recovery, but where the causal connection between the negligent failure of a defendant and subsequent ailments of a plaintiff is left to mere speculation, a nonsuit is required. Our conclusion is supported by the following authorities: Giusti v. Weston Co., 165 Or. 525 at p. 534, 108 P.2d 1010 (1941); McKay v. State Ind. Acc. Com., 161 Or. 191, 87 P.2d 202 (1939); Vale v. State Ind. Acc. Com. (supra); Chapman v. General Petroleum Corporation, 152 Or. 147, 52 P.2d 190 (1935); Doumitt v. Diemer, 144 Or. 36, 23 P.2d 918 (1933); Blanchard v. Makinster, 137 Or. 58, 290 P. 1098, 1 P.2d 583; Lippold v. Kidd, 126 Or. 160, 269 P. 210, 59 A.L.R. 875 (1928); Spain v. O.W.R.N., 78 Or. 355, 153 P. 470, Ann. Cas. 1917E, 1104 (1915). The plaintiff has supported his contention on the issue of proximate cause by the citation of two cases: Merriam v. Hamilton (supra) from which we have quoted with approval.
Instead, he contends that, in the case of physicians, different standards apply to determine whether an actual agency relationship has been created. In support of that assertion, plaintiff relies on Giusti v. Weston Co., 165 Or 525, 108 P2d 1010 (1941), and Bridge v. Carver, 148 Or App 503, 941 P2d 1039, rev den, 326 Or 57 (1997). In Giusti, the court addressed whether a hospital was liable for the medical malpractice of certain physicians "in the employ of the company[.]"
This affirmative allegation shows that the deceased employed defendant Fraser, a member of the medical profession, to furnish the medical services in question and we find nothing in the remaining allegations of the complaint sufficient to impose liability upon the resident defendants for the alleged malpractice of defendant Fraser. The discussion in Hedlund v. Sutter Medical Service Co., 51 Cal.App.2d 327 [ 124 P.2d 878], and in Giusti v. C.H. Weston Co., 165 Ore. 525 [ 108 P.2d 1010], which is cited with approval in the Hedlund case, shows that the facts upon which such liability may be imposed are not alleged in the complaint here. (See also note in 29 A.L.R. 742.)
The case of Pilger v. City of Paris Dry Goods Co., 86 Cal.App. 277 [ 261 P. 328], announcing a contrary rule, was expressly disapproved in Inderbitzen v. Lane Hospital, 124 Cal.App. 462 [ 12 P.2d 744, 13 P.2d 905], and as pointed out in that case both before and since the decision of the Pilger case hospitals have been held liable in this state for tortious acts of physicians where the hospital had contracted to furnish medical services. ( Brown v. La Societe Francaise, 138 Cal. 475 [ 71 P. 516]; Bowman v. Southern Pacific Co., 55 Cal.App. 734 [ 204 P. 403]; Bellandi v. Park Sanitarium Assn., 214 Cal. 472 [ 6 P.2d 508]; Criss v. Angelus Hospital Assn., 13 Cal.App. (2d) 412 [ 56 P.2d 1274].) Many cases to like effect from other jurisdictions are collected in the Inderbitzen case at page 466 and to these cases may be added the following since decided: Edwards v. West Texas Hospital (Tex. Civ. App.), 89 S.W.2d 801; Giusti v. C.H. Weston Co., 165 Ore. 525 [ 108 P.2d 1010]; Hansch v. Hackett, 190 Wn. 97 [ 66 P.2d 1129]. [4] The useful legal fiction by which everyone is presumed to know the law, relied upon by the court in Iterman v. Baker, 214 Ind. 308 [ 15 N.E.2d 365], to reach a different conclusion, becomes a medium of injustice when applied in a case of this character.
This same general standard applies in determining whether the physician has failed to exercise due care in the diagnosis of a patient's injuries. See: Bakewell v. Kahle, 1951, 125 Mont. 89, 93, 232 P.2d 127, 129; Giusti v. C.H. Weston Co., 1941, 165 Or. 525, 533-534, 108 P.2d 1010, 1013; Peddicord v. Leiser, 1940, 5 Wn.2d 190, 199, 105 P.2d 5, 9. Here the specific charge of malpractice in diagnosis is that appellee was negligent in failing to learn until more than five weeks after her admission to Weiser hospital that appellant had sustained fractures of her neck and upper back; and that this failure was due to appellee's inexcusable delay in taking further X-rays after the first set of X-rays showed no fracture.
The authorities recognize joint and several liability resulting from the concurrent practice of medicine, whether in association, partnership or otherwise. 41 Am.Jur., Physicians and Surgeons, Sec. 113; Bolles v. Kinton, 1928, 83 Colo. 147, 263 P. 26, 56 A.L.R. 814; See, Giusti v. C.H. Weston Co., 1941, 165 Or. 525, 108 P.2d 1010, in which a hospital association, incorporated for profit, which employed physicians and furnished them office space and paid them monthly salaries, was held jointly liable for malpractice with one of the physicians. And see, Ybarra v. Spangard, 1944, 25 Cal.2d 486, 154 P.2d 687, 690, 162 A.L.R. 1258, for a broad statement of the responsibility of all who treat or assist in treating a patient, regardless of legal relationship.
The same would be true, a fortiori, as to a ship's nurses. While it has been stated that "there is no more distinct calling than that of the doctor," Pearl v. West End St. R. Co., 1900, 176 Mass. 177, 179, 57 N.E. 339, 49 L.R.A. 826, we are, nonetheless, persuaded to this conclusion by numerous cases which demonstrate the growing tendency to hold the doctor a servant in special circumstances, as where he is a resident physician on a hospital staff, Collins v. Hertfordshire C.C., (1947) 1 All E.R. 633; Gold v. Essex C.C., (1942) 2 All E.R. 237; Hansch v. Hackett, 190 Wn. 97, 66 P.2d 1129; Giusti v. C.H. Weston Co., 165 Or. 525, 108 P.2d 1010; Brown v. La Société Francaise, 138 Cal. 475, 71 P. 516; Bellandi v. Park Sanitarium Ass'n, 214 Cal. 472, 6 P.2d 508, see also 2 Harper and James, The Law of Torts, 1395-7 (1956), or where he is a corporate employee performing medical services which accrue to the benefit of his employer, Mrachek v. Sunshine Biscuit Company, 1953, 283 App. Div. 105, 126 N.Y.S.2d 383; Mrachek v. Sunshine Biscuit Company, 1954, 308 N.Y. 116, 123 N.E.2d 801; Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149, 157 P.2d 1; Jones v. Tri-State Tel. Tel. Co., 118 Minn. 217, 136 N.W. 741, 40 L.R.A., N.S., 485. The rule of the older cases rested largely upon the view that a non-professional employer could not be expected to exercise control or supervision over a professionally skilled physician.
This court's case law is in accord. Giusti v. Weston Co., 165 Or. 525, 529–31, 108 P.2d 1010 (1941) (corporation authorized to do business as hospital association, which contractually agreed to provide medical services to high school football players, vicariously liable for negligence of physicians that corporation employed to provide those services). Only a few jurisdictions appear to be to the contrary.
That case noted the general rule that a medical practitioner who calls in a specialist will not be liable for the negligence of the specialist if the two doctors act "independently" or if there is no concert of action between them in treating the patient. See also Giusti v. Weston Co., 165 Or. 525, 108 P.2d 1010 (1941); Moulton v. Huckleberry, 150 Or. 538, 46 P.2d 589 (1935); Annotation, 85 ALR2d 889 (1962). The Sprinkle case held, however, that where the general practitioner and the specialist acted "in concert," each could be liable for negligence. The issue of vicarious liability in that case was left to the jury.