105.10. Claims Based on Apparent Agency-Principal and Agent Sued-Principal Under Respondent Superior Only-Med Mal

105.10 Claims Based on Apparent Agency--Both Principal and Agent Sued-- Principal Sued Under Respondeat Superior Only--Medical Malpractice Actions-- Reliance on Principal Alleged Under certain circumstances, the liability of a party may arise from an act or omission of that party's apparent agent. In the present case, [name of plaintiff] has sued [name of principal] as the principal and [name of apparent agent] as [his] [her] [its] apparent agent. [Name of principal] denies that any apparent agency relationship existed. In order for an apparent agency relationship to have existed, [name of plaintiff] must prove the following: First, that [name of principal] held [himself] [herself] [itself] out as a provider of [type of care, e.g., complete emergency room care] and that [name of plaintiff] [name of decedent] neither knew nor should have known that [name of apparent agent] was not an employee of [name of principal]. Second, that [name of plaintiff] [name of decedent] [or others] did not choose [name of apparent agent] but relied upon [name of principal] to provide [type of care, e.g., complete emergency room care]. If you find that [name of apparent agent] was the apparent agent of [name of principal] at the time of the occurrence, and if you find that [name of apparent agent] is liable, then both [name of principal] and [name of apparent agent] are liable. If you find that [name of apparent agent] is not liable, then neither [name of apparent agent] nor [name of principal] is liable for the acts of [name of apparent agent]. If you find that [name of apparent agent] is liable, but that [he] [she] [it] was not the apparent agent of [name of principal] at the time of the occurrence, then [name of principal] is not liable for the acts of [name of apparent agent].