Appellate Developments in Medical Negligence

by Karen M. Rabenau

The hospital defendant in Rouse had an affiliation agreement with a nearby medical school. Pursuant to the agreement, attending physicians, who were faculty members of the medical school, would supervise the patient care provided by the residents. In addition to supervising residents, the attendings were responsible for admitting, diagnosing and treating patients.

In Rouse, the defendant attendings were on-call but not present at the hospital when fetal monitoring showed the plaintiff’s baby in distress. The residents treating the patient failed to timely notify any of the attending physicians of the baby’s distress. Although the attendings had never before met nor treated the plaintiff, and the residents were hospital employees, the affiliation agreement gave the attendings the right to control the manner in which the residents practiced medicine. According to the Court, this contractual right of control was sufficient evidence from which a jury could find for the plaintiff on the vicarious liability issue under the borrowed servant doctrine. ⁸ This was so even though the hospital retained the right to hire, fire, discipline, grant privileges for specific tasks and pay the residents.

Relying on the Supreme Court’s reasoning in Rouse, the North Carolina Court of Appeals has since held an attending surgeon vicariously responsible as a matter of law for the negligent acts of a surgical resident. ⁹ In Brown v. Flowe, a surgical resident negligently inserted a trocar while the attending surgeon was instructing the resident on technique, and complications from the negligent trocar insertion ultimately led to the patient’s death. Upholding a directed verdict for the plaintiff as to the attending’s vicarious responsibility, the Brown court reviewed medical staff bylaws, hospital bylaws, as well as the affiliation agreement between the hospital and the medical school, all of which showed a right of control over the manner in which the resident surgeon practiced medicine. The Court also looked favorably upon the actual control the surgeon exercised over the resident during the procedure and its direct relation to the patient’s death. ¹⁰

<< Previous Next >>