Liability for Ancillary Staff in the Emergency Department: Legal Case Studies of Nurses and Physician Assistants
By Brian Snyder, MD, Gregory Moore, MD, JD, and Christopher S. Kang, MD, Department of Emergency Medicine, Madigan Army Medical Center, Tacoma, WA
While nurses have always had a presence in the emergency department (ED), the increasing prevalence and utilization of physician assistants (PAs) in EDs across the nation is generating a new and unique liability for emergency physicians (EPs). This article will familiarize the reader with pertinent legal concepts and recent cases that enlighten the issue of liability for ancillary staff in the ED.
In order to fully appreciate the following cases, it is important to understand three legal principles that govern liability in these situations. The pivotal concept is whether the physician has the ability to control the actions of the nurse or PA.
Most people realize that they are responsible for their own actions, and that if they are negligent, they will be liable for their wrongdoing. Vicarious liability is the legal tenet where, even though someone has done nothing wrong, he or she is responsible for the negligent acts of others. The main principle is: A master is vicariously liable for the negligence of his or her servants committed while the latter are acting within the scope of their employment.1 This principle is based on the concept of "respondeat superior," which is Latin for "let the master answer," dating back to Greek and Roman law. In order to apply "respondeat superior," a master-servant relationship must exist. The master is considered to have the power to control the servant, and although a salary is not required, this concept has traditionally translated to the boss-employee relationship. Vicarious liability has been considered a legal fiction that arbitrarily assigns blame, despite no negligence. The court's philosophy is that when a party has been wronged, someone must be responsible. The entity that is in the best position to prevent or mitigate the injury is the one who should be liable. A distinction to note is that an employer is generally not considered responsible for an independent contractor.
The case Lauro v. Knowles legally defined the elements that determine liability.2
Element 1: The principal "boss" indicates that the agent is acting for them.
Element 2: The agent accepts the undertaking.
Element 3: Both parties agree to the principal being in control.
In summary, the court stated that "the essence of the relationship is the right to control the work of the agent."
Borrowed Servant Doctrine
The "borrowed servant" doctrine evolved from old English law. In the past, farmers who needed help with their fields would "borrow" a servant from another farm to help. If there was a wrongdoing, the farmer who "borrowed" the servant was vicariously liable, not the servant's original master. The legal definition is: The common law principle that the employer of a borrowed employee, rather than the employee's regular employer, is liable for the employee's actions that occur while the employee is under the control of the temporary employer.3
A hypothetical medical example that illustrates this concept would be when a physician directly orders a nurse to do something that results in injury to a patient. Although the nurse is an employee of the hospital, the physician would be liable, as he has "borrowed" the hospital's servant. The hospital would not be liable. However, under vicarious liability, the hospital would be liable if the nurse unilaterally acted outside of the established scope of clinical practice for her assigned role.
Captain of the Ship Doctrine
Just as the captain of a ship is considered to be responsible for all that occurs with regard to the ship, the "captain of the ship" doctrine provides that a physician who exercises control over a group of other health care professionals will be held liable for their negligence. It parallels the "borrowed servant" doctrine but provides for a broader and harsher responsibility. This doctrine has been applied despite the fact that some health care professionals are not employed by the physician, but instead, by the hospital. In Johnston v. Southwest Louisiana Association, a surgeon was held responsible for a sponge being left inside a patient and an inaccurate sponge count, even though he did not participate in the actual count.4 However, the captain of the ship doctrine has recently fallen into disfavor in the courts. Courts are sympathetic that a physician rarely has complete control in the hospital environment, and that it is unfair to apply vicarious liability. The "captain of the ship" doctrine imposes liability primarily on surgeons in an operating room, in essence stating that they are responsible for the entire environment/arena. The doctrine has been confined primarily to the operating suite, but one can see where it could be applied to an EP in charge of a team.
This doctrine has fallen out of legal favor since the pivotal case Franklin v. Gupta. 5 In this case, patient Franklin was scheduled for wrist surgery. He underwent initial evaluation with laboratory testing, EKGs, radiographs, and a preoperative visit from an anesthesiologist, Dr. Lee. Dr. Lee identified Franklin to be at significant risk for anesthesia complications due to a history of syncope, emphysema, asthma, hyperthyroidism, depression, and morbid obesity. Dr. Lee decided that Franklin should receive a nerve block instead of general anesthesia, but did not record or notify anyone else of his assessment or recommendation. The following day, Franklin was evaluated by a nurse anesthetist (NA), who also decided that a nerve block and opioid medications were the appropriate choice for anesthesia. The nerve block was found to be "patchy" and Franklin received multiple intravenous (IV) doses of opioid medication. The NA then left to consult the supervising anesthesiologist while a second NA monitored the patient. The consultation was requested by the surgeon, Dr. Gupta, who wanted the patient placed under general anesthesia. During the consultation process, Franklin developed shallow breathing and became cyanotic and bradycardic. Franklin was intubated, received IV atropine and CPR, and remained in the hospital for five days, never having the originally scheduled surgery.
The plaintiff, Franklin, claimed that Dr. Gupta was at fault under the "captain of the ship" doctrine, since the operating theater is historically under control of the surgeon, and that, in this situation, the NA or assisting doctors were borrowed servants in a temporary master-servant relationship. The defense responded that a surgeon should be judged in the capacity of a surgeon, not as an anesthesiologist. The court found that there was no evidence that Dr. Gupta exercised control or supervision. It also stated that due to the specialization in medicine as well as within the relationship of surgeon and NA or anesthesiologist, the "captain of the ship" doctrine is inapplicable. The final decision of the case by the court was to reject the "captain of the ship" doctrine.
Illustrative Legal Cases Involving Nurses
In Minogue v. Rutland Hospital, an obstetrical nurse was instructed by a physician to apply pressure to patient Minogue's chest and abdomen during the delivery of a baby.6 The pressure was painful to the patient, who was quoted as saying, "You are breaking my ribs." The pressure did, in fact, break several ribs. The plaintiff, Minogue, brought suit, claiming that the employees of the hospital directly harmed her. The defendant, Rutland Hospital, argued that the physician was in control of the nurse's actions and, thus, the physician, not the hospital, was liable for the harm. The court concluded that the physician was liable, as he gave the order to apply pressure and the nurse was under his control, despite the fact that she was an employee of the hospital.
In contrast, a physician may not always be held liable for the actions of a nurse. In Ferguson v. Dyer, a 33-week pregnant woman, Ferguson, was evaluated in the ED and discharged home, but returned several hours later with worsening shortness of breath and respiratory distress.7 Ferguson was intubated and admitted to the ICU under the care of the attending physician, Dr. Dyer. After two days of mechanical ventilation, Ferguson improved, was extubated, and did well for 27 hours before requiring re-intubation. The nurse alerted a resident physician (not Dr. Dyer) after Ferguson deteriorated. The resident physician arrived and had difficulty intubating the patient, which resulted in an anoxic brain injury. The plaintiff, Ferguson, brought suit and argued that Dr. Dyer was liable for the actions of the nurse, as she was a borrowed servant. Dr. Dyer argued that while he could give orders and direct patient care, he did not have true control over all of the nurse's actions since he had not been notified. The court agreed with Dr. Dyer that the mere potential or possibility of control is not sufficient by itself to find liability under the borrowed servant doctrine.7
These cases illustrate that a physician can be held liable for a nurse's actions under the borrowed servant doctrine, but that a physician may not necessarily always be held liable. The ability of the physician to control the actions of the nurse will be the determining factor in the case outcome.
Illustrative Legal Cases Involving Physician Assistants
In contrast to liability for nurses, cases involving PAs almost always hold the supervising or employing physician liable.
In Flaherty v. Bell, a PA evaluated a woman with nausea and headache. He suggested several ancillary tests, prescribed an oral steroid medication without antibiotics, and recommended a follow-up appointment;8 a supervising physician did not see the patient. The patient had a sinus infection that subsequently eroded into her brain. The patient was taken to an ED when she deteriorated and was evacuated by helicopter to a facility with a neurosurgeon for emergency surgery. The patient had an additional surgery with partial craniotomy repair several weeks later and was hospitalized or in a rehabilitation facility for six months. The plaintiff, Flaherty, brought suit and claimed that the supervising physician was liable for the PA's care. She argued that it was the obligation of the supervising physician to actively discuss the patient encounter with the PA, instead of passively adding to the chart within a certain amount of time. This requirement was actually stated in the contract regarding supervision of the PA, and since the physician did not see the patient, there was a breach of that responsibility. The defendants contended that the plaintiff was contributorily negligent because she failed to obtain an X-ray and the blood tests that the PA had prescribed for her. At trial, the jury found in favor of the plaintiff, and awarded the plaintiff $2,290,589.14 and her husband $1,000,000.00 on his loss of consortium claim.
In another case involving a PA, Navarro v. Austin, a man awoke with a headache and double vision, and was taken by his wife, who was a nurse, to a nearby ED.9 They were greeted by a man named Mr. Herranz, who performed and recorded a history and physical exam. Mr. Herranz had trained as a PA, but failed licensure testing four times. He was contracted by a larger medical group as an expediter or scribe, but was not given limits on his duties. The attending EP, Dr. Austin, met the patient Navarro and ordered testing, including a computerized tomography scan imaging of the brain, and reviewed the results, but did not perform his own patient exam, thinking that Mr. Herranz was a PA. The testing was reported negative for an emergent condition, and the patient was discharged home with a diagnosis of sinus infection, and provided analgesics and antibiotics. The patient returned to the ED several hours later with progressive symptoms of gait disturbance, confusion, and worsening headache. A cerebellar stroke was diagnosed on repeat physical exam and testing. The patient fell into a coma after respiratory failure, requiring mechanical ventilation. The patient was determined nearly brain dead, but slowly recovered from his coma and moved to a specialized rehabilitation facility. After nearly a year, he was moved to another facility for five more years before returning home with his wife. At the time of the trial, the patient was able to move only his right hand slightly, could not control his bowel or bladder, and required a feeding tube because he was unable to eat due to multiple choking episodes.
The plaintiffs detailed a series of alleged failures by the medical providers. The larger medical group had never written a job description for Mr. Herranz that limited his role in the ED; never alerted its employees that Mr. Herranz was unlicensed and should not perform any clinical duties; billed for Mr. Herranz's work as if he were a doctor; and, although officially Mr. Herranz's role was as an expediter or scribe, had no policies or procedures that stopped Mr. Herranz from engaging in the unlicensed practice of medicine. The defense reasoned that Mr. Navarro's brainstem injury resulted from the stroke itself and not from delays in treatment. They relied on the fact that strokes happen and that cerebellar strokes are rare. Dr. Austin stated that he did not know that Mr. Herranz was only an expeditor or scribe and believed that he was a PA. The jury rendered a verdict for the plaintiffs and awarded $216.8 million. The EP, Dr. Austin, was held liable for 25%, Mr. Herranz was held liable for 25%, and the medical group employer was held liable for 50%.When physicians work with PAs, there are often state laws that define the scope of practice and relationships. Employer practice policies and procedures are often required, and will determine responsibility, involvement, and level of supervision by the physician. Compensating entities (insurance companies, state agencies, etc.) may require a defined amount of physician involvement for various levels of billing. While some states may allow PAs to work independently, in the majority of situations, the physician will be held liable due to the above factors.
There are several types of documents that are used to describe how a physician and PA will work together. These documents are often referred to as "supervision agreements," "delegation agreements," "job descriptions," "physician-PA practice agreements," or "supervision protocols." Whatever they're called, the purpose of the documents is to describe how the supervising physician and PA will work together; outline any specific requirements the physician has for the PA; explain how supervision will be documented; and provide general expectations for the physician and the PA. Some state laws require specific information to be included in the practice agreement. The best supervision agreements are general one- or two-page documents that allow flexibility and do not have to be modified every time the PA learns a new procedure or takes on a new task.10
Emergency physicians may be held vicariously liable when working with nurses and PAs. The key determinant is whether the EP has control of the nurse or PA. This control can occur either through actual direct employment or via a "borrowed servant" relationship. In light of the evolving composition of and dynamics within the ED workforce, especially in cases involving PAs, liability will be reduced if the EP follows established guidelines and personally evaluates the patient.
1. Restatement (Second) of Agency sec 219
2. Lou Ann Lauro v. Kenneth G. Knowles, M.D. et al Rhode Island Supreme Court. No. 98-74, 1999
3. Webster's New World Law Dictionary, Copyright © 2010 by Wiley Publishing, Inc., Hoboken, NJ.
4. Johnston v. Southwest Louisiana Association, 693 So.2d 1195 (La.App.1997)
5. Franklin v. Gupta 81 Md. App. 345, 567 A.2d 524 (1990)
6. Minogue v. Rutland Hospital 125 A.2d 796, (1956)
7. Ferguson v. Dyer, Ohio Court of Appeals No. 01 AP-619, March 28, 2002
8. Flaherty v. Bell and St. Clair Memorial Hospital, No. GD 03-23868. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division (2007) Pittsburgh Legal Journal, Vol. 156 No. 17 Page 299-303.
9. Navarro et al. v. Austin et al., Fla. Cir. Ct., 13th Jud. Cir., Hillsborough County Oct. 4, 2006 No. 02-6154
10. PAs in the ED. SEMPA. Retrieved May 31, 2012, from http://www.sempa.org/Resources/PAs-in-the-ED/