You can be sued

Charles W Quimby, Jr, MD

The aim of this article is to ac- quaint the operating room nurse with the legal elements of negligence and the pertinent elements and implica- tions of the employer-employee re- lationship.

The elements of negligence can be set forth as follows: The defendant owed a duty to the plaintiff; the de- fendant breached that duty; and the breach of that duty was the proxi- mate cause of the plaintiff's injury. Negligence is a technical term that is not synonymous with carelessness. A nurse may perform one of her many duties carelessly and in a man- ner of which she is not proud but, if she does not injure the patient, there is no negligence. Injury is an essential element of negligence.

Charles W Quimby, Jr, MD, LLB, is assistant pro- fessor, Division of Anesthesiology, University of Arkansas Medical Center, Little Rock, and assistant adjunct professor, Law School, University of Ar- kansas. H e received his MD from the University of Pennsylvania Medical School and his LLB from the University of Pennsylvania Law School.

Although the law is quite clear about what the elements of negli- gence are, their application to a given fact situation may at times be diffi- cult. Once a nurse understands, and, in a given fact situation, can clearly state the elements in terms of that fact situation, she is in a position to analyze the situation for the potential of negligence. I emphasize the word potential because negligence is a con- clusion of law that only a judge and jury can decide.

Duty means that course of conduct the nurse should have followed; it is the standard against which what she actually did is measured. Other terms for duty are due care, standard of care, and foreseeability. The latter term implies that the nurse saw or should have seen the possibility of injury to the patient. Generally speaking, the duty of an operating room nurse is what a trained and experienced operating room nurse would do or should have done under the same circumstances.

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At trial, once the plaintiff-patient sets forth by testimony of his wit- nesses the duty owed to him, he must then show the defendant-nurse breached that duty. Having estab- lished the breach of duty, the plain- tiff-patient must next demonstrate that the breach led directly to his injury. In legal terminology, the breach of duty must be the prox- imate, or direct, cause of the injury. From a practical point of view, some elements may either be obvious to the jury or may have to be explained to them by either lay or expert testi- mony.

After the plaintiff-patient has pre- sented his evidence, the defendant- nurse sets out to destroy the plain- tiff’s case.

At the end of testimony, the judge explains to the jury the law that ap- plies to the case. Then the jury ascer- tains the facts from the testimony and evidence, applies the law to the facts, and renders a decision. The de- cision can be either for the plaintiff- patient and against the defendant- nurse or vice versa. On occasion the jury may not be able to arrive at a verdict, but this is unusual in negli- gence cases.

If an operating room nurse is held liable for negligently injuring her patient, the fact that she is employed by a hospital does not alter her per- sonal responsibility to the patient. Her status as an employee exposes the hospital to liability for her negli- gence. The hospital’s liability is sec- ondary, derivative, or vicarious.’ The legal term for this doctrine is respon- deaf superior, which means “let the master respond” in money damages for the servant’s negligence.

Respondeat superior arises from a line of legal reasoning within the law of agency.’ This analysis considers that a servant is unlikely to have sufficient money either to compensate the victim negligently injured within the scope of his employment or to buy insurance to cover that contin- gency. Moreover, the master is more likely to have a greater source of funds from which to compensate the negligently injured, innocent victim. Finally, the master not only reaps the benefits of the servant’s labor while in the master’s employ but also has the right to control the activities of his servant within the scope of his employment. Whether or not the mas- ter exercises his right of control is not the governing factor. Having the right to control is.

The case of Bernardi v Community HospitaZ Assn 166 Colo 280, 443 P 2d 708 (19681, emphasizes the em- ployer’s right of control. Justice Groves wrote the opinion of the court:

. . . Lisa, seven years of age, was a patient in the hospital, having been the subject of surgery for the drainage of an abscessed appendix. The doctor was her attending physician. He had left a written postoperative order at the hospital that Lisa was to be given an injection of tetracycline every twelve hours. During the evening of the first day following surgery, the nurse, employed by the hospital and acting under this order, injected the dosage of tetracycline in Lisa’s right gluteal region. It was alleged in the complaint that the nurse negligently injected the tetracycline into or adjacent to the sciatic nerve, causing Lisa to have “complete foot drop” and to lose

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permanently the normal use of her right foot . . .

to the case in which the nurse acts out of the presence of the doctor.

T h e principal argument of counsel for the plaintiffs and the hospital are directed toward the question as to whether the doctrine of respondeat superior should be applied to the hospital for the act of the nurse . . . Justice Groves quotes with ap-

proval from Bing v Thunig 2 NY 2d 666, 163 NYS 2d 11 143 NE 2d 8 (1957) :

Hospitals should, in s h o r t, shoulder the responsibilities borne by everyone else. There is no reason to continue their exemption from the universal rule of respondeat superior. The test should be, for these i n s t i t u t i o n s , whether charitable or profit-making, as it is for every other employer-was the person who committed the negligent injury-producing act one of its employees, and, if he was, was he acting within the scope of his employment.

Justice Groves continued:

If we were to rule that respondeat superior does not apply because the hospital is not licensed as a nurse, then it would seem to follow that an airline should not be liable for the negligence of its pilot because the airline is not licensed to fly an aircraft . . . The hospital was the employer of the nurse. Only it had the right to hire and fire her. Only it could assign the nurse to certain hours, certain areas and certain patients. There was no choice in the doctor or the plaintiffs as to the identity of the nurse who would serve Lisa . . .

. . . [Tlhis decision relates only

Under the doctrine of respondeat superior, the negligently injured pa- tient can sue both the employee (nurse) on the basis of her personal liability and the employer (hospital) on the basis of its derivative or vi- carious liability. But, the injured vic- tim collects only once. If the employ- er pays the damages on the basis of his vicarious liability, he has the right to collect that amount from the em- ployee who is primarily liable. How- ever, this is rarely, if ever, done.

A practical extension of respondeat superior is the borrowed servant doc- trine. It applies to the hospital and the operating 'surgeon when the op- erating room nurse, a hospital em- ployee, is under his control. The fact situation from which this doctrine arose is as follows: The master has the right of control over his servant and can lend him, ie, transfer that control to another person, the second master. If the borrowed servant acts negligently while under the control of the second master, the second mas- ter, not the original master, is held vicariously liable for the negligent acts of the borrowed servant.

Even though the second master is vicariously liable, the servant remains primarily or personally liable for his own negligence.

When the operating room nurse is under the control of the operating surgeon, she is, for some purposes, a borrowed servant. Under these cir- cumstances, the operating surgeon is the second master and is vicariously liable for the negligent acts of the operating room nurse. In short, the law deems that the hospital has trans-

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ferred the right of control of the op- erating room nurse to the operating surgeon.

However, modern courts have modified the borrowed servant doc- trine as it applies to the operating surgeon’s liability for some acts of the operating room nurse. The courts have done this by separating the op- erating room nurse’s tasks into two broad categories: One is the profes- sional or “medical” task; the other is the ministerial or administrative task. Although it is difficult to give an exact definition for each category, an administrative task may be de- fined as one that does not require professional training or experience.

This differentiation of tasks arose in the context of the surgical sponge left within the patient’s body due to an erroneous sponge count. Courts feel that it does not require a nursing degree to count sponges. Hence, a sponge count is an administrative act. The practical result of this differen- tiation of tasks is that, if the court labels the task professional or “medi- cal,” the operating surgeon is held vicariously liable for the operating room nurse’s negligence; but if labeled administrative, the surgeon - a sec- ond master - is relieved of liability, and the hospital, the original master, is held vicariously liable.

The Buxan v Mercy Hospital (Fla App) 203 So 2d 11, 29 ALR3d 1059 (1967), case examines the situation where the operating room nurse, a hospital employee, is under the super- vision and direction of the operating surgeon. Note that this court has a different view of the differentiation of tasks from the court in the Ber- nardi case. Chief Justice Carroll wrote the opinion of the court:

(Buzanl sued Dr Banning Gray Lary and Mercy Hospital, Inc for damages alleging negligence of the defendants by leaving foreign mat- ter in his abdomen upon an opera- tion for the removal of his gall bladder. I t was alleged that due to pain and infection in the area a second operation was performed which revealed such foreign mat- ter. Want of due care was alleged as to the defendant doctor who performed the initial operation, and plaintiff sought damages from the hospital for alleged negligence of its employee or employees assisting in the operation, in im- properly counting the sponges or instruments or otherwise permit- ting such foreign matter to remain within him . . .

The further question material to the liability of the defendant hos- pital on the doctrine of respondeat superior, that is, whether the nurse who assisted in the operation and made the sponge count was the ser- vant of the hospital or was the borrowed servant of the operating doctor . . .

. . . IAl distinction is recognized in the type of service or act attri- buted to a hospital nurse assisting in an operation. Basically, duties of such an assisting nurse which in- volve professional skill or decision are regarded as controlled solely by the surgeon or doctor. On the other hand, in performing services or acts not involving professional skill or decision, and which are ministerial in character, a hospital nurse assisting a surgeon is not regarded as his borrowed servant. A sponge count by an assisting nurse generally is held to be in the latter category.

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Quoting from two other cases with approval, the chief justice con- tinues:

In our opinion the counting of laparotomy squares in the instant case was not an act requiring the exercise of a particular skill or dis- cretion acquired or developed by a special training. It was an act which could have been done by an unskilled or untrained employee and it did not involve the exercise of any professional judgment. We conclude that the incorrect count was not a medical mistake; it was an administrative or nonprofes- sional mistake from which liability on the part of the hospital can result . . .

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 orders of the physician. Fur- nishing proper personnel and equip- ment for an operation are duties of a hospital. The selection of prop- er sponges was the duty of the hos- pital. Counting the sponges so as to see that no sponge was left in the body of the patient required no special professional skill or de- cision of the surgeon. Indeed, [the surgeon] relied upon sponge count of the nurse. The judgment of the trial court in

this case was reversed by the state supreme court, who sent the case back for trial.

In summary, when the operating room nurse is under the control of the operating surgeon, he is vicarious- ly liable for her negligent perform- ance of a professional or “medical” task. On the other hand, if the court

determines that the act performed negligently was an administrative act, the hospital is held vicariously liable. Regardless of the task’s label, the op- erating room nurse remains person- ally liable to her patient for negli- gently injuring him. 0

REFERENCES

I. In some cases, although the hospital may be vicariously liable, it may be protected either by the doctrine of charitable immunity or by the doc- trine of sovereign immunity. The latter doctrine i s ancient: it simply means that unless the city, county, state or Federal government permits them- selves t o be sued, the injured plaint i f f cannot col- lect a money judgment from the hospital which i s an arm of a political subdivision, ie, the sovereign.

The doctrine of charitable immunity, which used t o be widespread in the United States, i s now undergoing legislative and judicial repudiation. Succinctly, i f a hospital i s nonprofit and supported by voluntary contributions, ie, charitable contribu- tions, the doctrjne protects the hospital against money judgments rendered against it arising from the negligence of i t s servants. In other words, the hospital i s vicariously liable but the doctrine pre- vents the injured plaintiff from collecting from the hospital. The rationale for the doctrine was the judicial aim t o protect the charitable contributions from drain and secure them for the care o f pa- tients.

2. The law o f Agency i s a large body o f law that defines the legal relationships both between one person who works for or i s employed by an- other person and that other person, and between these two and third parties. Historically, the Anglo- American law of Agency began in feudal times and i s couched in terms o f master-servant. With the expansion of commerce, the law of mastet servant was expanded t o define the relationships between the merchant (the principal), his agent and third parties. As you would expect, this area i s called the law o f principal and agent: this por- tion o f the law of Agency does not concern us. In the sphere of employment about which we are interested here, the terms, employer-employee are used. Howver, in modern legal decisions, the older terms of master-servant are s t i l l widely used.

Suggested background reading

Curran, WJ, and ED Shapiro. Law. Medicine and F0rens.k Science, 2nd ed.

Boston and Toronto: Little, Brown and Co, 1970.

Prosser, WL. Law of Torts, 4th ed. S t Paul, Minn: West Publishing Co, 1971.

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