Medical malpractice and respondeat superior. (Review Articles).
MALPRACTICE is defined as failure to provide professional services with the skill usually exhibited by responsible and careful members of the profession, resulting in injury, loss, or damage to the party contracting for those services. Although accountants, lawyers, and other professionals can be charged with malpractice, the term is most commonly associated with medical professionals. (1)
Most medical malpractice suits are filed as result of negligence (ie, a type of tort or civil wrong) - Negligence is defined by what a reason ably prudent person would or would not do in the same or similar circumstance. Negligence can result from the individual medical provider or from some type of agency relationship that exists between two or more health care providers. In general, when we discuss the relationship between agency and malpractice, we refer to the concept of vicarious liability and the Doctrine of Respondeat Superior.
Under agency principles, the concept of vicarious liability and the Doctrine of Respondeat Superior occurs when the servant (employee; commits a tort within the scope of employment and the master (employer) is held liable though the master may have done nothing wrong. (2)
Once it is determined that the man at work is a servant, the master becomes subject to vicarious liability for his torts. But his vicarious liability, for conduct which is in no way his own, extends to any and all tortious conduct of the servant which is within the "scope of the employment."
... It has been said in general, the servant's conduct is within the scope of his job or employment if it is of the kind which he is employed to perform, occurs substantially within the authorized limits of time and space and is actuated at least in part, by a purpose to serve the master.
The fact that the servant's act is expressly forbidden by the master, or is done in a manner which he has prohibited, is to be considered in determining what the servant has been hired to do, but it is usually not conclusive and does not in itself prevent the act from being within the scope of employment. A master cannot escape liability merely by ordering his servant to act carefully. (3)
Under Tennessee law, which is in accord with that of most states, a master can be liable for his servant's negligence solely by Respondeat Superior. (4) That doctrine is based on the principle "that the wrong of the agent is the wrong of his employer. (5)
The Doctrine of Respondeat Superior has been used in determining a medical provider's negligence. Tennessee Code Annotated Section 29-26-115 (1980) states that to hold a doctor or other provider liable individually for malpractice, one must show by competent expert testimony "(1) the standard of care, (2) that the defendant deviated from that standard, and (3) that as a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred." (6)
Although many factors lead to a malpractice claim, in the past the major focus by malpractice insurance carriers has been on improving communication regarding services between individual provider and patient as well as adequately documenting these services in the medical record. (7) However, because of the recent changes in health care, the liability of many health care providers has been assigned as a result of their employment relationship with a third party. A physician or other health care provider may be found just as liable for a negative medical outcome that results from another health care provider's negligence. Liability attaches when it is determined that the medical provider exercised control over the negligent provider's means and methods of work. A medical provider's liability for others is solely referred to as the Doctrine of Respondeat Superior and when used is similar to the concept of master and servant or employer and employee under general agency principles. (8)
To understand this Doctrine and its effect on malpractice actions against health care providers in Tennessee, one must review past and current Tennessee court decisions. In Meadows v Patterson, (9) Dr. Patterson performed an appendectomy on Mr. Meadows. After the operation and through the night, the defendant was placed in the care of Miss Nipper, a graduate and experienced nurse. The next morning when he regained consciousness, he discovered that his eye had been injured. It appeared that defendant had injured himself during the night with his fingernail. The plaintiff sued the doctor claiming he remained under the defendant's control during the night. The courts found the following:
The rule is that a hospital nurse, although not in the regular employ of the operating surgeon, is under his special supervision and control during the operation and the relation of master and servant, or principal and agent, exists during the operation and the surgeon is responsible for the negligence of the nurse. But, in the absence of special contract, the surgeon is not responsible for the negligent act of a nurse in the after treatment of the patient following the operation unless it appears that the surgeon assumes to continue his control and direction of the nurse following the operation. (9)
In Rural Educational Association v. Bush, (10) the defendant operated a hospital where plaintiff was admitted for examination and treatment. Several physicians were on the "resident staff' of the hospital. The doctors found the plaintiff had mastoiditis and recommended an operation. Plaintiff accepted. After recovery from the mastoid operation, further operation was indicated on the abdomen. The operations took place in the surgery rooms of the defendant, Dr. Schuler. The defendant furnished all facilities and all personnel. The nurse and anesthetist were among the attendants. They were servant and employees of the defendant. After the abdominal surgery, the plaintiff did not recover as expected. He became desperately sick. He was again sent to surgery, and the operation disclosed a gangrenous intestine caused by the sponge that had been left in the intestine. The court found that the nurse was the agent of the defendant hospital rather than the doctor. The court stated:
When a nurse acts under the orders of a private physician in matters involving professional skill and decision, she is absolved from liability for her acts. Many acts of a nurse, however, do not result from the orders of the physician. Furnishing proper personnel and equipment for an operation are duties of a hospital. The selection of proper sponges was the duty of the Hospital. Counting the sponges so as to see that no sponge was left in the body of the patient required no special professional skill or decision of the surgeon. Indeed, Dr. Schuler relied upon the sponge count of the nurse. (10)
In French v Fischer, (11) Rebecca was born May 2, 1959, at Methodist Hospital, Memphis, Tennessee. On May 17, 1959, she began to have severe vomiting attacks. Her parents called in Dr. Allen, who diagnosed the baby's ailment as pyloric stenosis and advised the parents that an operation was needed. The operation was scheduled and done that evening at Baptist Memorial Hospital. During the operation, the doctor sent the circulating nurse out of the operating room. The circulating nurse had difficulty completing the job he gave to her and was gone for most of the operation. The scrub nurse verified the count of sponges used and removed from the incision, but she made a mistake and one of the sponges remained. On June 2, 1959, Rebecca was taken to LeBonheur Hospital because of problems. She was found to have a sponge in her abdomen and had to have two thirds of her small intestine removed. Her parents filed suit. The courts stated that Tennessee had elected to follow the cases, which made the counting of sponges an administrative function and not the result of the surgeon's control over the operation. However, the court did find that there was negligence individually on the part of both the doctor and the scrub nurse. The doctor was held for his own individual negligence and Baptist Memorial Hospital was held for negligence of the scrub nurse under the theory of vicarious liability. (11)
In McCay v Mitchell, (12) a malpractice action was initiated in the case of a child who lost a portion of her arm after an injury on a swing. On June 9, 1962, the child fell from a swing and injured her left forearm. She was taken to her primary physician and was referred to an orthopedic surgeon, Dr. Mitchell. He diagnosed a compound fracture of both bones of the left forearm. He reduced and closed the fracture, applying a splint and cast. The child began to have pain after leaving the hospital. Several days later, the family tried to contact Dr. Mitchell but found he was off for the day. In his place, they were given the name of Dr. Williams, who saw the child and removed the cast. The cast was replaced, and the child was sent home. The child had to go to the hospital the next day because of continued problems and was seen by Dr. Mitchell who was back at work. Dr. Mitchell noted that the child's arm was blue and immediately sent her to have vascular surgery. The operation was unsuccessful, and the left arm had to be amputated. The court found that there was a question in fact about whether Dr. Williams was an agent of Dr. Mitchell and thus liable under an agency theory. The court determined that the trial court had erred in allowing summary judgment. A new trial was ordered to determine this issue. (12)
In Edmands v Chamberlain Memorial Hospital, (13) a suit was brought against the hospital for the death of plaintiff's husband. On April 20, 1978, plaintiffs husband was taken to the emergency department of the defendant hospital, where the emergency physician examined the patient and sent him home. His condition continued to deteriorate. The next morning, the patient was returned to the hospital where he was examined. Emergency surgery was done, and he died during the procedure. The defendant contended that the physician, Dr. Loftis, was not an employee of the hospital but a staff physician. The court disagreed with this as fact and cited a well settled opinion that hospitals are liable for the negligent acts of their agents and employees even though they are selected with due care under the theory of vicarious liability. The court found as a result of this theory that in this case there was a disputed issue of material fact about whether Dr. Loftis was the hospital's agent. The court stated:
We conclude the record in this case establishes a disputed issue of material fact as to whether or not Dr. Loftis was the hospital's agent. The emergency room is to staff the facility with physicians to treat members of the public who come to the hospital for emergency medical care. The patient does not know or select the physician but relies upon the hospital for providing the physician. Significantly when decedent's condition worsened after being turned away by Dr. Loftis, plaintiff called the hospital and apprised Dr. Loftis of the decedent's condition rather than attempting to contact the treating physician."
In the case of Bass v Barksdale, (14) a medical malpractice action was brought against the nurse and physician who worked at the Metropolitan Public Health Clinic because Mrs. Bass allegedly had blindness caused by drugs prescribed for treatment of tuberculosis. Nurse Barksdale was employed as a charge nurse of the TB health clinic. She wrote prescriptions that were signed by Dr. Quinn, who was also an employee of the clinic. Nurse Barksdale stated she wrote the prescriptions for Mrs. Bass after talking with Mrs. Bass' private physician. Dr. Quinn signed the prescriptions for the antituberculosis medications but never saw Mrs. Bass directly. The court found the following:
We find nothing in the record upon which to base vicarious liability. Both Dr. Quinn and Nurse Barksdale were employees of the Metropolitan Government. Dr. Quinn was Nurse Barksdale's supervisor but not her employer. Dr. Quinn was an intermediate superior employee of Nurse Barksdale and is not liable for negligent acts of omission or commission committed by nurse Barksdale. Dr. Quinn as an intermediate superior employee is to be held to respond only if his personal negligence in an immediate act or command was the efficient cause or coefficient cause of the injury. He is not to be held along with the employer to constructive liability.
However, at the conclusion of the opinion, the court did find evidence that Dr. Quinn failed to exercise duty to supervise the nurse's treatment of the patient. (14) In Tutton v Patterson, (15) a medical malpractice action was brought against an obstetrician after a sponge was found in the patient's body several months after the physician had done a cesarean section and delivered a healthy baby boy. After the cesarean, the patient became ill and eventually had to have abdominal surgery and removal of large portion of the intestines. The hospital that employed the nurses who had been responsible for the sponge count during the cesarean surgery settled out of court. As a result, the court found the physician could not be held vicariously liable for the conduct of the hospital nurses where the nurses had been released from any liability owed to the patient via this settlement. The court also found that there was sufficient evidence to find the physician negligent in leaving a sponge in the patient's abdomen. (1 5)
In Estate of Shirley J. Dannenhold v Knoxville Pathology Group PC, (16) a medical malpractice action was sought after the misreading of a 1993 Pap smear allegedly led to terminal cancer. Knoxville Pathology Group PC had an exclusive contract with Fort Sanders Regional Medical Center to provide management services and physician coverage for the pathology and laboratory departments of the hospital. The cytology department in the laboratory processed the Pap smears submitted to the hospital laboratory for examination and diagnosis. Three cytotechnologists were employed in the cytology department, and the pathologists were members of the Knoxville Pathology Group. The pathologists were responsible for supervising the cytotechnologists' work. The cytotechnologists were paid employees of the hospital, but a large portion of their time was spent each day performing pre-screen readings on slides, the reports for which would be issued by members of the Knoxville Pathology Group. The slide involving the patient was su bmitted by her gynecologist and was read by the cytotechnologist, who issued a negative reading. However, a year later, the patient sought treatment from a different physician and her Pap smear sample was submitted to a different laboratory. A cancer diagnosis was reported. The cancer was invasive at that time. The trial court sustained a motion for summary judgment for the defendants. The appeal was filed, and the plaintiff raised the issues of whether the cytotechnologist who misread the Pap smear slide was the agent and/or borrowed servant of the pathologist who issued the negative report and whether the cytotechnologist was engaged in the business of and under the supervision of the pathologist at the time the slide was read. The Court of Appeals found a basis for this issue and that the theory of vicarious liability may apply. The case was remanded back to the trial court for further proceedings. (16)
Under agency principles, an employer can be liable vicariously for the torts of an employee even when the employer is without fault. This type of relationship exists when an employee acts on behalf of and subject to the control of the employer. When the employer has the right to exercise detailed control over the physical actions of the employee, the concept of vicarious liability and the Doctrine of Respondeat Superior may be invoked. An action based on negligence, whatever the specific situation, involves basic problems of the relationship among the parties, the risk, and the reason.
In the context of medical malpractice a negligence action is often precipitated by a bad outcome. Numerous cases have involved the concept of vicarious liability and the Doctrine of Respondeat Superior as a successful cause of a medically negligent action. Recent changes in the health care system may contribute to additional causes of action being recognized. As managed care has moved to the forefront of health care, many medical providers have left independent practice and become employees of large health care organizations (HMOs) or hospitals. Some medical providers have formed their own business with health care extenders who perform many of the services previously provided by the medical provider. As a result, HMOs and hospitals have become employers of medical providers, and medical providers have become employers of their health care extenders.
In the past, the relationship with the patient and extensive documentation in the medical record were the most important elements in preventing malpractice litigation. (7) These efforts, while important, may have less of an effect in the evolving health care climate. With these changes, principles of agency and vicarious liability may become increasingly important in evaluating malpractice liability. Both the negligence of a health care employee employed by an individual medical provider and the negligence of an individual medical provider employed by a health care company have given rise to successful malpractice suits in the state of Tennessee. The Doctrine of Respondeat Superior is one to weigh carefully by both plaintiffs and defendants in their current practice of law and medicine.
(1.) Malpractice. The Columbia Electronic Encyclopedia, 2000. http://kids.infoplease.lycos.com/ipd/A0401963.html
(2.) Gross L: The Professor Series, Agency and Partnership. New York, Larchmont, 1998, p 91
(3.) Dobbs D, Keeton RE, Owen DG: Prosser and Keaton on Torts. Keeton WP (ed). St. Paul, west Publishing Go, 5th Ed, 1984, pp 501-502
(4.) Smith v Henson, 381 SW2d 892, 897 (Tenn 1964)
(5.) Raines v Mercer, 55 5W2d 263, 264 (Tenn 1932)
(6.) Tenn Code Ann Section 29-26-115 (1980)
(7.) Avery KJ: Let the Record Show. Brentwood, Tenn, State Volunteer Mutual Insurance Go, 2000, pp 337-338
(8.) Parker v Vanderbilt University, 767 SW2d 412,414 (Tenn Ct App 1988)
(9.) Meadows v Patterson, 109 SW2d 417,419,429 (Tenn Ct App 1937)
(10.) Rural Educational Association v Bush, 298 SW2d 761-766 (Tenn Ct App 1956)
(11.) French v Fischer, 362 SW2d 926 (Tenn Ct App 1962)
(12.) McCay V Mitchell, 463 SW2d 710 (Tenn Ct App 1970)
(13.) Edmonds v Chamberlain Memorial Hospital, 629 SW2d 28 (Tenn Ct App 1981)
(14.) Bass v Barksdale, 671 SW2d 476,478,479,488 (Tenn Ct App 1984)
(15.) Tutton v Patterson, 714 SW2d 268-270 (Tenn 1986)
(16.) Estate of Shirley J Dannenhold v Knoxville Pathology Group PC, 1998 WL 79236
RELATED ARTICLE: KEY POINTS
* Malpractice occurs as a result of negligence
* Under agency principles, the concept of vicarious liability and the Doctrine of Respondeat Superior may be used in determining a physicians negligence.
* Physician extenders and physicians who employ them may need to be cautious of their liability under this Doctrine.
From the Tennessee Department of Mental Health and Developmental Disabilities, and the Department of Psychiatry, Vanderbilt University Medical Center, Nashville, Tenn.
Reprint requests to Judith J. Regan. MD, MBA, Tennessee Department of Mental Health and Developmental Disabilities, 425 5th Ave N, Nashville, TN 37243.