Appellate Developments in Medical Negligence

by Karen M. Rabenau

Karen Rabenau practices plaintiff’s medical malpractice law across the State. She is a partner in the firm of Twiggs, Beskind, Strickland & Rabenau, P.A. in Raleigh. Within the Academy, Rabenau is a member of the Board of Governors, Education Committee and Secretary of the Professional Negligence Section. Within the Association of Trial Lawyers of America, she is a member of the Publications Committee and Student Trial Advocacy Committee, organizing their national student trial competitions.

Because of the issues created by Rule 9(j), there has been an exponential increase in the number of medical negligence cases confronted by our appellate courts in recent years. Excluding case law related to Rule 9(j) ¹, the most noteworthy developments have been in the areas of vicarious liability, the continuing course of treatment doctrine and informed consent for allegedly "experimental" procedures.

Vicarious Liability

1. Temporary Agency: The Borrowed Servant

After graduating from medical school and being licensed by the State as medical doctors, physicians typically complete their formal education in a particular specialty through multi-year residency programs. Residents typically rotate through hospitals and clinics, providing treatment under the supervision of more experienced, attending physicians. When a resident physician is negligent, the attending physician may be held responsible for direct negligence in failing to provide proper supervision. Now, due to the Supreme Court’s decision in Rouse v. Pitt County Memorial Hospital, the attending may be vicariously responsible for residents’ negligence under the borrowed servant doctrine.

It is well-settled that attending/supervising physicians can be held responsible under direct negligence principles for failure to properly supervise residents. ² In Rouse v. Pitt County Memorial Hospital, the North Carolina Supreme Court reaffirmed that on-call attending physicians responsible for supervision and training of residents owe a duty to the patient being treated by the residents to exercise reasonable care in supervising the residents. ³

In addition to direct liability for negligent supervision of residents, the attending physician may now be vicariously liable under the borrowed servant doctrine for the negligence of his or her residents, even though the resident is providing treatment outside of the physical presence of the attending physician. ⁴ In so holding, the Rouse Court rejected the notion that the borrowed servant doctrine "is not even implicated unless the resident is in the presence of the attending physician and is acting under that attending physician’s direct supervision." ⁵ Instead, the dispositive factor is whether the attending had the right to control the manner in which the resident provides medical care. ⁶

Residents are typically hospital employees, and absent other facts, the hospital is assumed to retain the right to control all aspects of its employees’ job performance. Attendings therefore are not ordinarily responsible for the negligence of residents under vicarious liability principles. However, an attending physician may become a "temporary master" of a resident if the attending acquires "the right to control the resident physicians’ manner of performance related to the provision of medical services," ⁷ regardless of whether that control is actually exercised.

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