Determining liability in the ED: Who takes the blame?

By Gregory P. Moore, MD, JD, Attending Physician Emergency Department, Kaiser Permanente Sacramento/Roseville California; Volunteer Clinical Faculty, Emergency Medicine Residency, University of California Davis School of Medicine.

Editor’s note: As we work from day to day, it is easy to lose sight of the fact that members of each health care team have legally defined relationships. However, our actions and those of others require that we act within the standards of care set for our individual professional roles. One health care provider’s alleged negligence can result in a chain of legally defined accountabilities upon other health care workers and organizations for one potentially negligent act. In this issue, the author reviews how the law can attempt to impute responsibility on health care organizations and/or other health care workers for the alleged negligence of another.


A pharmacist correctly fills a prescription from an emergency department (ED) physician, which then causes harm to a patient. A resident does harm to a patient while his attending physician is elsewhere. A nurse makes a mistake in the presence of a physician. Who should answer for these medical errors?

In most cases of medical litigation, there will be multiple parties involved in the care of a patient, and an inevitable discussion of who ultimately is liable will ensue. This article will review the most common relationships found in emergency medicine and how a court would determine which party is responsible for the outcome.

Courts typically look at which party has control over the other(s) and if a relationship with a patient was established — an obvious fact when there’s an employer-employee contract that specifically states who is the boss and that party is responsible for the other parties. However, in emergency medicine, a variety of parties often care for a patient without such a defined relationship, and the court must decide the issue. All parties usually will declare, "It was not my responsibility" then courts must look to the totality of the situation and try to establish where the control lies to assign blame. Sometimes, courts will assign fault when no one has erred. After a review of legal basics in the area of liability, multiple cases involving specific ED relationships will be reviewed. It is important for ED physicians to understand which situations will lead to increased personal exposure and liability when errors occur.

Vicarious Liability

Everyone should be expected to be held accountable for his/her own actions. Vicarious liability extends this farther and makes one accountable for the actions of someone else who commits a wrong on the first person’s behalf. "It is a legal fiction by which a court can hold a party legally responsible for the negligence of another, not because the party did anything wrong, but rather because of the party’s relationship to the wrongdoer."1 Most typically, this is found in an employer-employee relationship. It is a critical concept regarding financial recovery, allowing for a plaintiff to go up the ladder and pursue the "deep pocket." Employers also are more likely to be insured and are easier targets for a sympathetic jury. The central idea is that "a master is vicariously liable for the torts (negligent harm) of his servants committed while the latter are acting within the scope of their employment."2 This concept arose in Greek and Roman law as respondeat superior ("let the master answer"). The master-servant relationship is a consensual one in which a servant performs service on behalf of the master, and the master has the ability to control the actions of the servant. This concept of respondeat superior carries over even if the employee disobeys direction. For example, if the owner of a truck company tells his employees to drive safely, and they drive recklessly in disobedience, the company owner still may be vicariously liable under the concept of respondeat superior.

Another situation involves an employer of an independent contractor. In general, courts assume that an independent contractor performs on the behalf of an employer, and that the employer does not exert control over the independent contractor’s actions. So courts rule, in general, that a mistake made by an independent contractor does not result in liability on the employer’s part. The general rule that courts follow in determining vicarious liability is that the plaintiff must prove that the employee was a servant rather than an independent contractor, and that the harmful behavior fell within the scope of employment. Some exceptions to this rule are:

  • Negligence of the employer in selecting, instructing, or supervising an independent contractor;
  • An employer delegating a designated public responsibility to an independent contractor;
  • Work that is inherently dangerous.

Vicarious liability is an area that is legally very controversial and at times seems unfair. The underlying legal policy and theory of vicarious liability is that when someone is hurt, he/she should be compensated. The employer has the greatest ability to afford to compensate and the greatest ability to prevent mistakes from happening. Thus, the employer must accept the liability, although it did not specifically make a mistake.

Borrowed Servant and Captain of the Ship

Two other legal concepts are important to understand how liability is determined. These concepts are used when a plaintiff pursues liability. The first is called the borrowed servant theory. In earlier times, a farmer may not have had enough workers and would ask another landowner to borrow his servant. The farmer then was responsible for the actions of the borrowed servant, who was actually an employee of someone else. The obvious medical example of this would be when a university-employed resident physician works in an off-campus private hospital setting, or a hospital-employed nurse is borrowed by a physician to do duties in the hospital.

The captain of the ship doctrine labels the captain as liable when there is a defined leader of a group of people in a specific environment. An example of this would be a surgeon in the operating room with all the nurses and technicians, or theoretically, an ED attending physician in an ED setting. Hospitals frequently will try to avoid liability of their nurse employees by labeling a physician as the captain of the ship. The courts increasingly are disallowing this theory to be advanced because they recognize the complexity of current medical environment interactions and that seldom is one person truly in charge.

Strict Liability

Strict liability is liability without fault. It is mentioned here as a form of liability that plaintiffs occasionally attempt to apply to physicians, but is seldom successful.

In Helling v Carey,3 the court stated, "There are many situations in which a careful person is held liable for an entirely reasonable mistake. In some cases, the defendant may be held liable, although he is not only charged with no moral wrongdoing, but has not departed in any way from a reasonable standard of care." The court noted that when there is a damaged patient, social justice demands identifying someone who can best bear the cost of the injury, although there has been no fault.

The above case involved a patient regularly seen by an ophthalmologist. There was loss of vision due to glaucoma at age 32. No pressures had been taken on multiple office visits. Several experts all agreed that the chance of glaucoma occurring in a patient younger than 40 years is 1/25,000; so rare that it is not necessary to measure pressures routinely. Nevertheless, the court held the ophthalmologist liable. This case led to tremendous medical outcry and was thought to be the birth of defensive medicine.

A more typical case of strict liability and its failure when used as a theory against individual physicians is found in Porter v. Rosenberg.4 A physician performed breast implant surgery on his patient. The implant was found to be defective. Even though the physician properly performed the surgery, the patient sued him as being "liable without fault" because he had complete control and responsibility for the products he chose to use. The court disagreed and said the physician is a user of a product and not a distributor. A distributor is clearly liable. If a physician promoted a diet supplement or a dentist promoted a toothbrush, then he would be held liable for any injury or malfunction because he purposely used his position to distribute a defective product.

Courts are very resistant to apply the theory of strict liability to individual physicians. In a classic case, Hoven v. Kelble,5 the plaintiffs attempted to "extend the rule of strict liability to a case of personal injuries suffered in the practice of medicine (medical malpractice)." A man suffered cardiac arrest and severe neurologic damage during a lung biopsy. His wife then sued for $4 million. The judge looked at the components of strict liability. In plain language, to have strict liability the plaintiff must prove: 1) that the product was defective when it left control of the seller; 2) that it was unreasonably dangerous to the consumer or user; 3) that the defect was a substantial reason for the injury, 4) that the seller engaged in the business of selling the product; and 5) the product was one that the seller expected to reach the consumer unchanged. The plaintiff’s argument was that practicing medicine is a business, and a product should be held to the level of strict liability as defined above. The judge, after analyzing this point by point, stated, "If this theory was adopted, then it would set the standard of performance for the profession at the zenith of achievement, a level that virtually no one could perform."

What would the result be if an injury occurred due to malfunctioning of a piece of equipment being used by an emergency physician in the ED? In reviewing the five components of strict liability above, the physician may be liable if he or she altered the product after it left the seller, used it improperly, or marketed its use for business purposes.

In the remainder of this article, multiple cases will be reviewed that illustrate who is liable in a variety of specific relationships in the medical and ED setting.

Hospitals, Contract Groups, Independent Contractors

• Arrington v. Lake Area Medical Center.6 Mr. Arrington went to Lake Area Medical Center’s (LAMC) ED complaining of shortness of breath. The ED attending physician, Dr. Samudia, evaluated and released him on medication and to follow up with his regular physician. Dr. Samudia had worked an 18-hour shift at another hospital prior to beginning his shift at LAMC. The patient’s shortness of breath continued for a few days; he returned by ambulance, but died of a pulmonary embolism. The widow sued the hospital, physician, and ED group for failure to diagnose. Dr. Samudia and the ED group settled, but the LAMC contested the allegation, noting it was not responsible for Dr. Samudia’s actions. The jury found LAMC 60% responsible, and LAMC appealed. The hospital claimed that Dr. Samudia was not an employee of LAMC, but of the ED group, and therefore, the hospital was not responsible for the physician’s actions. The court agreed that Dr. Samudia technically was not a hospital employee, but that LAMC had treated him as an employee and now could not avoid responsibility of his negligence. In rendering its decision, the court noted that LAMC supplied the physician with all his medical supplies and assigned his working schedule and location. Independent contractors provide their own supplies and arrange their own work schedules. The court stated, "Courts will inquire as to the real nature of the relationship and the degree of control exercised or the hospital’s ability to control the doctor’s activities. These physicians were subject to rules and regulations of the medical staff of LAMC."

Again, under the guidelines of vicarious liability, the fact of whether someone is actually an employee, independent contractor, or loaned servant may not be as important to the court as the fact of who actually has control over the actor and his/her actions.

Traditionally, hospitals were not held accountable for the actions of physicians working within them because it was thought that they did not control the actions of physicians. Recently, courts increasingly are willing to use the vicarious liability exception of a duty to ensure competent independent contractors.

• Simmons v. Tuomey Regional Medical Center.7 Mr. McBride came to Tuomey Regional Medical Center after falling from his moped and hitting his head. The patient was confused. It was thought that the confusion was due to the patient’s intoxication, and he was released. Mr. McBride’s condition deteriorated the next day, and he returned. On the second visit, a diagnosis of subdural hematoma was made. Unfortunately, he died six weeks later from complications related to the injury. His daughter subsequently sued the hospital and the two ED physicians, who were independent contractors. The trial court granted summary judgment to Tuomey Regional Medical Center. (A summary judgment occurs when the court looks at all the facts in a way most favorable to the opposing party and still finds no evidence to proceed with the case.) The court cited a signed consent form by the daughter, which read, "The physicians practicing in this emergency room are not employees of Tuomey Regional Medical Center. They are independent physicians, as are all physicians practicing in this hospital." The daughter said she did not read the form because she was upset and believed the doctors were employees of the hospital.

The South Carolina Supreme Court cited Section 429 of the Restatement (Second) of Torts, which states that "One who employs an independent contractor to perform services for another, which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants." Three conditions must be shown for a plaintiff to assign vicarious liability in the situation of an independent contractor working in a hospital ED: First, the hospital held itself out to the public by offering the services; second, the plaintiff looked to the hospital, rather than to a particular doctor, for his/her care; and third, a reasonable person would believe that the physician was an employee of the hospital.

Typically, an employer is not responsible for negligence of an independent contractor. An exception to this rule is when an employer hires an independent contractor in the performance of a service that is in the public’s interest. For example, an employer secured a contract to build a highway bridge, but then used independent contractors to do the work. If the bridge collapsed due to faulty work, the employer could not avoid liability by saying it was the independent contractor’s fault.

• Chandler v. Cash.8 Mr. Chandler came to Marshall Memorial Hospital ED, where he was examined by Dr. Reed and released. He died the following day. His mother sued the hospital, Dr. Reed, and Dr. Cash (who never saw the patient, but owned the contract with the hospital for ED physician services). Ms. Chandler claimed Dr. Cash was vicariously liable under the doctrine of respondeat superior. Both Dr. Cash and Dr. Reed testified that Dr. Reed was an independent contractor and that Dr. Cash had no means to control Dr. Reed’s methods of work. Dr. Reed made all her own treatment decisions without input or approval. Dr. Cash did not provide any tools or medical equipment. Dr. Cash made a schedule for Dr. Reed, but she was allowed to change it or not perform the work at all. Dr. Cash did not deduct any income or Social Security taxes from Dr. Reed’s pay, and Dr. Cash did not provide liability insurance for her. The trial court awarded summary judgment in favor of Dr. Cash. Dr. Cash was not vicariously liable because Dr. Reed fulfilled the true description of an independent contractor.

Vicarious liability can be avoided when someone clearly is shown to be an independent contractor; these cases illustrate that, in the practice of medicine, this complete independence often is difficult to prove.

Liability Between Nurses and Physicians

• Franklin v. Gupta.9 A very unhealthy patient went to surgery for carpal tunnel syndrome. Dr. Lee was designated as the anesthesiologist and Nurse Sergott as the nurse anesthetist. Due to health concerns, Dr. Lee recommended an axillary or brachial block, rather than general anesthesia. He did not discuss the case further with the nurse anesthetist or see the patient. Nurse Sergott independently decided to use a brachial block. When it did not seem to take effect, Nurse Sergott left the room to consult Dr. Lee who could not come to the operating room and recommended a repeat block. After three doses of the local anesthetic, the patient developed bradycardia followed by asystole and then respiratory arrest that responded to atropine and intubation. A suit ensued, and the surgeon Dr. Gupta was named as a defendant under the captain of the ship doctrine. The plaintiff asserted that Dr. Gupta was the leader in the operating room where there was a bad occurrence. The court rejected this logic and noted that Dr. Gupta is not an anesthesiologist, but rather a surgeon. He did not have the capabilities as an anesthesiologist nor did he exert control over Nurse Sergott’s action other than stopping the surgery. Thus, the doctrine could not be upheld.

• Ferguson v. Dyer.10 Ms. Ferguson, who was 33 weeks pregnant, presented with shortness of breath. She was intubated and admitted to the intensive care unit under the care of Dr. Dyer and Nurse Hilleary. Two days later, Ms. Ferguson appeared to be improving and was extubated. The next day, her respiratory status deteriorated. Nurse Hilleary paged the resident on duty, but not Dr. Dyer. A difficult intubation by the resident resulted in anoxic brain damage with permanent impairment. The testimony subsequently revealed that the nurse delayed in calling for help. The plaintiff had sued Dr. Dyer on the theory that Nurse Hilleary was a loaned servant of the hospital and that he was liable for her actions. The jury found Dr. Dyer not negligent, but the plaintiff appealed. The court upheld the jury’s verdict and noted that the inquiry should focus on whether the general employer (hospital) had retained direction and control over the employee or whether, in the specific act of harm, the control passed to the borrowing employer (Dr. Dyer). Although Dr. Dyer gave orders concerning the patient’s treatment in the expectation they generally would be carried out, he did not exercise control over the nurses regarding the detail and manner of administering care. Most importantly, the court said that the mere potential or possibility of control is not enough to find liability under the loaned servant doctrine.

From these cases, it would follow that general ideas on vicarious liability would apply in the ED as well. Neither the assertion of captain or the ship doctrine nor the borrowed servant doctrine was accepted by the court in these nurse/physician cases. If a physician has unquestionable and direct control over a nurse’s actions and should be either aware of a problem or able to intervene, then he could be held liable via either doctrine. Courts realize that medicine is becoming very specialized and technically complicated. Now, there are advanced machinery and procedures that require personnel who are trained to perform independently beyond a level that a physician would be expected to knowledgeably supervise and thus, to which be accountable. Thus, in an ED setting, it appears unlikely that courts would hold a physician liable under these theories for triage decisions or other actions that are made independently and without the knowledge of the physician, or for the improper use of equipment by others. The hospital likely would be held liable under the respondeat superior theory if the nurse were an employee, as in most situations. Contrast this situation with that of a nurse in a freestanding urgent care facility who is hired by a physician group. In that case, because of the employment relationship, the ED physician could be held liable for all actions of the nurse.

Liability Between ED Physicians and Consultants

• Majzoub v. Appling.11 Plaintiff Majzoub filed a medical malpractice claim against Dr. Appling for alleged malpractice in the death of her husband. Mr. Majzoub came to the Rosewood Medical Center ED, experiencing difficulty breathing. Dr. Humayun’s examination documented swollen lymph nodes, an inflamed pharynx, enlarged tonsils covered with pus, and hoarseness. Mr. Majzoub tested positive for a Group A streptococcal infection. Because of his concerns about the patient’s airway and desiring recommendations for treatment, Dr. Humayun consulted with the on-call ENT physician, Dr. Appling. He approved of Dr. Humayun’s previous treatment and asked to be updated. Later, Mr. Majzoub stopped breathing and went into cardiac arrest. Dr. Humayun was unable to intubate and performed an emergency tracheotomy with Dr. Appling’s assistance. A subsequent electroencephalogram showed no brain activity, and the patient died three days later.

Drs. Humayun and Appling were both sued in the same lawsuit. The appeals court noted that for Dr. Appling to be found negligent, a physician-patient relationship must have been established. The court stated that Dr. Appling did not have a physician-patient relationship in this situation prior to his arrival at the hospital. Dr. Appling was consulted, but had not acted affirmatively in any course of action before he arrived to the hospital. Furthermore, the plaintiff had not claimed negligence by Dr. Appling after his arrival at the hospital.

The fact that Dr. Appling did not see Mr. Majzoub in person was not the only factor preventing him creating a relationship. Dr. Appling neither had given nor implied consent for a relationship with the patient. Ms. Majzoub argued that Dr. Humayun acted according to Dr. Appling’s recommendations. However, the court found that Dr. Humayun still was responsible for making his own decisions. Dr. Appling had been on-call, making him more than a colleague or peer, but this authority was not enough to create the relationship while Mr. Majzoub still was in Dr. Humayun’s care.

• Bessenyei v. Raiti.12 Mr. Bessenyei had paint thinner injected into his thumb under high pressure and presented to the ED for this injury. Dr. Raiti, the ED physician, consulted a hand surgeon, who was not on call but previously had demonstrated a willingness to help. The hand surgeon recommended antibiotics and pain medications, which the patient was given. He had his tetanus immunization updated and was discharged with instructions to return if his condition worsened. The patient’s thumb worsened, and a partial amputation subsequently was necessary. Mr. Bessenyei sued both physicians claiming they negligently failed to realize the seriousness of a high-pressure injection and appropriately incise and debride his thumb. The hand surgeon asked the judge to dismiss him from the case because he had no relationship to the patient or contractual duty; he simply provided advice. The judge agreed and held the ED physician solely liable stating, "It was Dr. Raiti [ED physician] who had direct contact with the patient, rendered care, and initiated contact with the consultant. He could override the consultant by accepting or rejecting his recommendations and made the final decision."

In general, a consultation over the phone does not establish a physician-patient relationship; thus, the consultant cannot be held liable for malpractice related to advice. Most courts require an actual examination by the physician to establish a relationship or a very specific and affirmative action by the physician that establishes that the doctor agrees to be involved in the patient’s care. The courts are hesitant to have mere conversations (even in on-call situations) or an agreement to follow-up care as establishment of a formal relationship because to allow it would chill the normal communication of professionals that usually facilitates optimal patient care.

Two recent cases go against that general trend. In the first, Diggs v. Arizona Cardiologists Ltd.,13 Mrs. Diggs went to the ED complaining of severe chest pain. The ED physician thought that the patient had pericarditis. He informally asked the chief of cardiology, who happened to be in the ED but not on call, to review the patient’s data. The cardiologist concurred with the ED physician’s diagnosis and recommended anti-inflammatory agents. Three hours after discharge, Mrs. Diggs died of a heart attack. The cardiologist claimed there was no physician-patient relationship; but the court disagreed, stating that the cardiologist had provided specific recommendations on a specific patient, knowing that the ED physician and also the patient would be relying upon his expertise.

Also, in Campbell v. Haber,14 an ED physician examined Mr. Campbell and ordered cardiac enzymes testing, which was suggestive of myocardial damage. The ED physician called the cardiologist at his home and related the clinical signs, symptoms, and laboratory results. The cardiologist expressed an opinion that the test results were not consistent with a cardiac event. The ED physician informed the patient and his wife that he had consulted a cardiologist who doubted that cardiac disease was present. Based on this opinion, the patient was discharged home. Mr. Campbell subsequently suffered a heart attack and survived.

In contrast to the previous case, the ED physician called the cardiologist at home. The cardiologist was not on call for emergency services, and his group had no formal contractual arrangement to cover emergencies at the hospital. The cardiologist was never formally consulted, never saw the patient, and never reviewed Mr. Campbell’s chart. Nevertheless, the court held the cardiologist liable.

It is important for ED physicians to realize that they themselves are responsible for their patients and their outcomes, unless they formally involve a consultant. This can be accomplished by requesting that the consultant establish a relationship with the patient either via specific advice and affirmative action or physically evaluating the patient.

Liability Between Physicians and Pharmacists

• Morgan v. Wal-Mart Stores Inc.15 Ms. Morgan sued Wal-Mart Inc. for failing to warn her of side effects and for failing to include the package insert of the medication acquired from its pharmacy that led to the death of her son. In early 1991, Ms. Morgan consulted a psychologist about her son’s behavior. He was found to have an attention deficit hyperactivity disorder. The mother was given a prescription for desipramine to be administered to her son. The two discussed some of the common side effects of the drug.

Ms. Morgan had obtained the prescription at Wal-Mart. Wal-Mart had not warned her of the drug’s side effects, nor did they include the manufacturer’s insert, which warned of the complications, which were later suffered by her son. The child later died of hypereosinophilic syndrome, a known but rare complication of desipramine.

Ms. Morgan was awarded $674,500 in actual damages against Wal-Mart. Wal-Mart appealed, arguing that it was the prescriber’s responsibility to inform the patient of all adverse side effects and not the pharmacy’s responsibility to do so. The court agreed with the plaintiff’s assertion and found that the doctor who had seen Ms. Morgan’s son should have informed her of the side effects of desipramine.

Generally, courts have found that the responsibility to inform of side effects lies with the physician and not the pharmacy. The pharmacy could be found liable if being aware that a medication would harm the patient, it still failed to warn the patient. This could occur if, for example, the pharmacist knew the patient was an alcoholic, but still prescribed a drug that caused a severe side effect in reaction to alcohol.

• Brooks v. Wal-Mart Stores Inc.16 Plaintiff Robert Brooks sued Wal-Mart for filling a prescription calling for a dangerously high level of prednisone to be taken daily, which led to irreversible damages to the plaintiff. Dr. Deterding treated Mr. Brooks for kidney failure and prescribed prednisone. According to court documents, Mr. Brooks presented the prescription to pharmacist Kimberly Stutts at Wal-Mart’s Asheboro, NC, store. According to Ms. Stutts, the prescription indicated plaintiff was to take 80 mg prednisone four times per day, a daily total of 320 mg. Ms. Stutts stated she telephoned the physician’s office to inquire whether 320 mg was the intended dosage, and that a female answered the call, placed Ms. Stutts on hold, and subsequently returned and confirmed the dosage level as 320 mg. Ms. Stutts, thereupon, filled the prescription at 320 mg per day, and it was subsequently refilled at the same level by pharmacist Charles Adams in Wal-Mart’s Greenville, SC, pharmacy.

Later, Mr. Brooks developed an opportunistic lung and brain infection and was found to have suffered permanent kidney failure as a consequence of the opportunistic infection resulting from the severe immunosuppression of the prednisone treatment and was awarded $2.5 million, holding the pharmacist liable. The court noted that a pharmacist has an obligation to identify a harmful prescription and refuse to prescribe the dose even with the confirmation of the physician.

These cases on liability illustrate that the pharmacist must only fill a prescription safely and that the doctor has the duty to warn of side effects. The pharmaceutical companies pass this liability on by warning physicians via the Physicians’ Desk Reference (PDR). In reality, it is impractical to go over every possible side effect of every medicine prescribed. One way to reduce liability to the physician would be for the physician to instruct patients at discharge to "read package inserts of prescribed drugs before taking them, and call with any questions."

Duty/Liability to Third Parties (Duty to Warn)

Traditionally, a physician only had a primary obligation and responsibility to his own patient and no duty to anyone else as a result of this relationship. This dictum was changed dramatically by the following landmark case that established a duty to warn third parties. A third party is one who has no contact with a physician but has a foreseeable relationship with the patient who is being treated by the physician.

• Tarasoff v. Regents of University of California.17 A psychologist’s male patient expressed to him that the patient intended to kill his girlfriend. The psychologist notified campus police, who interviewed the patient but released him. The patient later killed his girlfriend. The girl’s parents successfully sued the therapist claiming that he had a duty to warn their daughter of the threat. The defense stated that the doctor had no duty to warn because notification of the patient’s girlfriend would have breached patient-physician confidentiality. The court, in supporting the plaintiffs, declared that a duty to warn third parties at risk exists if they are foreseeable. The Tarasoff decision has been accepted by most, but not all states. Several recent cases illustrate the reach of this duty to warn doctrine.

• McGrath v. Barnes Hospital, et al.18 Following admission to the hospital, a paranoid schizophrenic voiced feelings of hurting himself and others. He specifically announced in a group session that he was having thoughts of stabbing his mother. The therapist did not warn the patient’s parents. Later that day, the patient was released; that evening he stabbed his father to death and severely injured his mother. A suit was brought for failure to warn of specific expressions of violence. The defense stated that the parents were well aware of their son’s violent thoughts and tendencies. The mother was awarded $2 million by a jury.

Tarasoff also states, "A doctor must also warn a patient if a patient’s condition or medication renders certain conduct such as driving a car, dangerous to others."17 The following case illustrates just such a situation.

• Robinson v. Health Midwest Development Group.19 A woman came to the ED requesting treatment for her nerves. She was given an injection of prochlorperazine and 35 minutes later left the ED without formal discharge and without being warned of the side effects of the drug (i.e., dizziness, drowsiness, hypotension, or impairment of operating machinery). The facts of the case reveal that 10 minutes after departure and after having coingested alcohol, the patient crossed the center line of the road upon which she was driving, causing a head-on collision that inflicted severe injuries upon an occupant of the other vehicle. The injured person then sued the physician and hospital for failing to have warned the plaintiff. The court, which held the physician liable for having failed to warn the injured party, supported the plaintiff’s assertion. The physician’s defense was that there was no duty to warn the general public. The court stated that a doctor can anticipate which drug will impair a patient’s ability to drive and cause a danger to the public. The court also stated that anyone would find fault with someone who administers an impairing drug and doesn’t warn the recipient; it can be assumed that a reasonable person after being warned, would not drive. The court did not address the elopement issue. Whenever a sedating medication is prescribed or given, the chart should include a warning that the drug administered or prescribed may impair driving was given to the patient to help ensure a safe disposition home.

Infectious diseases are another area where there may be a duty to warn third parties. The court in Tarasoff also stated, "A doctor is liable to persons infected by his patient if he negligently fails to diagnose a contagious disease or having diagnosed the illness fails to warn members of a patient’s family."17 A classic case that utilized and supported this concept is DiMarco v. Lynch Homes-Chester County.20 Ms. Viscichini, a blood technician, was punctured accidentally while taking a blood sample from a patient. When Ms. Viscichini learned the patient had hepatitis, she immediately sought treatment from two physicians; both told her that, if she remained symptom-free for six weeks, it would mean the hepatitis virus had not infected her. Although she was not told to refrain from sexual relations for any period of time, she did so until eight weeks after exposure. Because she had remained symptom-free during that time, she then resumed sexual relations with her boyfriend (Mr. DiMarco). Three months after exposure, Ms. Viscichini developed hepatitis B and, three months after that, Mr. DiMarco was diagnosed as having the same disease.

Mr. DiMarco sued Ms.Viscichini’s doctors, claiming they were negligent in not warning Ms. Viscichini that if she had sexual relations within six months of exposure she could infect her sexual partner. In affirming the existence of a duty owed to Mr. DiMarco, the court explained that when "a physician treats a patient who has been exposed to or who has contracted a communicable and/or contagious disease, it is imperative that the physician give his or her patient the proper advice about preventing the spread of the disease. Communicable diseases are so named because they are readily spread from person to person. Physicians are the first line of defense against the spread of communicable diseases because they know what measures must be taken to prevent the infection of others. Thus, the duty of a physician in such circumstances extends to those within the foreseeable orbit of risk of harm. If a third person is in that class of persons whose health is likely to be threatened by the patient, and if erroneous advice is given to that patient to the ultimate detriment of the third person, then, the third person has a cause of action against the physician."

A more recent case regarding the duty to warn in infectious disease is McNulty v. City of New York.21 A nurse, Ms. McNulty, went to the apartment of a friend who was ill and confused and accompanied her friend to the hospital after having had close contact with her. Two physicians, aware that the patient had meningitis, did not respond to Ms. McNulty’s questions nor did they initiate measures to treat her prophylactically for meningitis. Ms. McNulty developed meningitis three days later and suffered hearing loss as a complication of her illness. She sued the physicians. Their defense was that they had no duty to her because there wasn’t a physician-patient relationship with her. The court ruled in her favor because "the doctors knew or should have known that she was relying on them for advice regarding her exposure to a dangerous contagious disease." Later, the New York Court of Appeals reversed this ruling deploring the behavior of the physicians, but noting a hesitancy to make the duty to warn this far reaching because it would result in the possibility of unlimited plaintiffs in some cases.21 Again, the duty to warn is to a foreseeable injured person. It is so easy, however, to warn liberally to avoid liability. With infectious diseases, such as human immunodeficiency virus and sexually transmitted diseases, the physician may feel handcuffed to warn on the one hand, but maintain confidentiality on the other. Liability is transferred easily to patients by directing them to warn those they come in contact with and documenting this action on their charts.

Liability in Supervision of House Staff

• Lownsbury v. VanBuren.22 Ms. Lownsbury’s attending physician, Dr. VanBuren, after an evaluation of Ms. Lownsbury, ordered that she be sent to Akron City Hospital for induction of labor. After arrival at the hospital, instead of following Dr. VanBuren’s instructions, the on-duty obstetric residents administered a contraction stress test, which revealed fetal distress. Unfortunately, the residents examined only a small portion of the test, and that segment did not demonstrate the fetal distress. Ms. Lownsbury’s baby, Rebecca, was born neurologically impaired.

Dr. Stover was the supervising physician at the hospital during the residents’ care of Lownsbury. Although Dr. Stover was not present during any part of Ms. Lownsbury’s examination, it was argued that his lack of appropriate supervision resulted in Rebecca’s brain damage. Both the trial and appeals courts granted summary judgments to Dr. Stover, stating that he was not liable because he never came into contact with Ms. Lownsbury.

The case then went to the Ohio Supreme Court because there still was some doubt as to whether Dr. Stover’s lack of contact with the patient may have constituted malpractice. Ms. Lownsbury signed a hospital consent form that stated that it was a teaching hospital, and that students may be allowed to administer treatment; however, it also specified that there always would be an attending physician delivering general instructions. Therefore, the court stated that it was Dr. Stover’s responsibility to review Ms. Lownsbury’s case and to be present during the baby’s birth, rather than waiting for the residents to call for help.

The court acknowledged that in a teaching institution, defining relationships and liability may be difficult, and it reviewed previous cases on this issue. It concluded that a physician-patient relationship arises whenever it is demonstrated that a physician consents to act for a patient’s benefit. In an institutional environment and in the reality of modern teaching hospitals, doctors may be assumed to have voluntarily assumed a duty of supervisory care under their hospital contracts. There must be consent by the physician to care for the patient, but it may take many forms. It may be by actual examination and interaction, or it may be via assuming the obligation to provide resident supervision in the care of a patient with whom the supervising physician may have had absolutely no contact, direct or indirect.

• Landry v. Leonard J. Chabert Medical Center.23 Ms. Landry arrived at Chabert Medical Center with a severe headache. A resident in the ED examined her, ordered a CT scan, and performed a lumbar puncture. She was admitted to the hospital and sent home the next day with the diagnosis of a muscle tension headache. At discharge, the patient was told to take pain medicine and return to the hospital only if her condition worsened. Dr. Ferguson, the attending physician, never reviewed Ms. Landry’s case.

The next day, Ms. Landry returned to the hospital complaining of vomiting and a worsening headache. Dr. Mart, the attending physician who examined her, found that she could not see to her left. When he examined her CT scan done on her previous visit, Dr. Mart found that Ms. Landry had several small infarcts that the resident had failed to notice. He ordered additional CT scans, which, according to the radiologist, indicated a "massive cerebral infarct." Ms. Landry was admitted to the hospital and soon transferred to intensive care. She died three days later.

The survivor plaintiffs won a suit against Dr. Ferguson, receiving damages of $500,000, the highest award possible under Louisiana’s malpractice law. Particularly moving for the jury were the statements made by one expert witness. He said that it’s "a requirement of teaching hospitals that the attending staff supervise the interns and residents. The hospital’s bylaws bar the medical staff from delegating the diagnosis and care of patients to practitioners who are not qualified to undertake responsibility and who are not adequately supervised."

According to a Louisiana Court of Appeal, supervisors can be held liable for a trainee’s malpractice. The court defined the term "supervisor" as both those "direct overseers of treating physicians," and "doctors that are assigned to ensure that coverage requirements are met." Dr. Ferguson appealed the case, claiming that his lack of involvement in the care ruled out his liability. The court decided that his absence was exactly the problem. With the title of "supervisor," the physician immediately accepted a duty of care for the patient. Therefore, because physicians accept a duty of care for their patients and are held accountable for it; so too, those physicians who are entrusted with supervising other treatment providers must adhere to the standards demanded by such a position, or be held responsible for an error in their inferior’s judgment.

This case again shows that if physicians are in a supervising position over other providers, it behooves them to review cases and comply with hospital bylaws or contractual agreements with training programs. Being unavailable or unaware of resident actions will not absolve a supervising attending of responsibility for resident actions.

• St. Joseph Hospital v. Wolff.24 Stacy Wolff was critically injured in an automobile accident and admitted to Brackenridge Hospital. The attending physician, Dr. Harshaw, and a resident, Dr. Villafani, performed a tracheostomy. Dr. Villafani was in a training program administered by St. Joseph’s Hospital and was only rotating at Brackenridge. A few days later, the surgical wound began bleeding. Dr. Villafani decided not to inform any superiors, including Dr. Harshaw, who was not in the hospital at the time. The bleeding put the patient into cardiac and respiratory arrest, and she suffered severe brain damage. The patient’s parents sued St. Joseph’s Hospital as the employer of Dr. Villafani and claimed malpractice by Dr. Villafani. The plaintiffs were awarded $9.5 million against St. Joseph’s Hospital. On appeal, St. Joseph’s claimed that the resident was out of its control and was a borrowed servant of Brackenridge Hospital. The court agreed and absolved St. Joseph’s Hospital of any vicarious liability for Dr. Villafani. The court said that when a resident is rotating at another institution in a recognized agreement, that the institution where the resident is working has control over him, and thus, responsibility for his actions.

This case reinforces the concept explained early in this article that even if a servant (employee) unilaterally does harm, the respondeat superior (master) will be held liable as a result of the concept of vicarious liability. In this case, although St. Joseph Hospital was the primary respondeat superior (master), Brackenridge Hospital had stepped into the role of master by utilizing Dr. Villafani as a borrowed servant. This made it vicariously liable for his actions.

After reviewing these cases regarding resident supervision, it is clear that it behooves the attending physician to demand the expectation of communication and awareness of resident care. The attending physician should be present or available for all management decisions and actions on patients cared for by house staff under his control. Only then can he avoid liability.


While confusing at times, the key factor that determines responsibility is whether there is an established relationship with the harmed person; if there isn’t, whether one person had control over the person who did the harm.

The following points should be clear. In most cases, an employer will be responsible for the actions of an employee. A physician usually will be responsible for the actions of a nurse only if the physician has direct control over the nurse’s actions when harm occurs, otherwise the nurse’s employer will be liable. A pharmacist is responsible for safely filling a prescription; it is the prescribing doctor who is responsible for harmful outcomes of the drug itself due to known side effects. ED physicians should consider consultants on the phone as a resource and not as liable in patient care; most courts will state they have not developed a physician-patient relationship. To establish that relationship, the ED physician should ask for specific commitment from the consultant or an actual examination of the patient.

An attending supervising physician should assume he/she is responsible and liable for all actions of the training person who is under his/her control at all times. If a physician knows that a patient has a condition that affects safe functioning, is taking medications that could lead to injuring others, intends to hurt others, or has an infectious disease that could harm others, then the physician should warn the third party(ies) in some fashion to avoid liability. This action is required only if that third party is foreseeable and is not mandated in all states.

(Editor’s note: Special thanks to James P. Moore and Malia J. Moore for their contributions in preparing this article.)


1. Furrow BR, Greaney TL, Johnson SH. Health Law: Cases, Materials, and Problems. 4th ed. St. Paul, MN: West Group; 2001, p. 425.

2. Restatement (Second) of Agency 219.

3. Helling v. Carey, 519 P.2d 981 Wash. 1974.

4. Porter v. Rosenberg, 650 So. 2d 79 Fla. App. 1995.

5. Hoven v. Kelble, 79 Wis. 2d 444; N.W.2d 379 (1977).

6. Arrington v. Lake Area Medical Center, No. 2002-987, Louisiana Court of Appeal (Feb. 5, 2003).

7. Simmons v. Tuomey Regional Medical Center, No. 25,143, South Carolina Supreme Court (June 5, 2000).

8. Chandler v. Cash, No. 06-99-00048-CV, Texas Court of Appeals (March 21, 2000).

9. Franklin v. Gupta, 81 Md. App. 345; 567 A.2d 524 (Ct. Sp. App. Md. 1990).

10. Ferguson v. Dyer, No. 01 AP-619, Ohio Court of Appeals (March 28, 2002).

11. Majzoub v. Appling, No. 01-00-00842-CV, Texas Court of Appeals [1st District] (Aug. 30, 2002).

12. Bessenyei v. Raiti, No. JFM-01-1029, U.S. District Court-Maryland (June 9, 2003).

13. Diggs v. Arizona Cardiologists Ltd., Ariz. Ct. App. No. 1 CA-CV 99-0508 (Aug. 8, 2000).

14. Campbell v. Haber, Sup. Ct. App. Div. 4th dept. N.Y. Slip Op 06766 (July 7, 2000).

15. Morgan v. Wal-Mart Stores Inc., No. 03-99099700-CV, Texas Court of Appeals (Aug. 10, 2000).

16. Brooks v. Wal-Mart Stores Inc., No. COA 99-430, North Carolina Court of Appeals (Aug. 29, 2000).

17. Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal 1976), 17 Cal. 3d 425 (1976).

18. McGrath v. Barnes Hospital, et al., No. 992-00130, Missouri Circuit Court. December 2001.

19. Robinson v. Health Midwest, No. WD58290, Missouri Court of Appeals (March 6, 2001).

20. Dimarco v. Lynch, Homes-Chester County (1990) 525 Pa. 558 [583 A.2d 422].

21. McNulty v. City of New York, No. 4927 [1st Dept.] (May 21, 2002). City of New York v. McNulty, 1 No. 52, New York Court of Appeals (May 13, 2003).

22. Lownsbury v. VanBuren, No. 00-1655, Ohio Supreme Court (Feb. 20, 2002).

23. Landry v. Leonard J. Chabert Medical Center, No. 2002 CA 1559 (May 14, 2003).

24. St. Joseph Hospital v. Wolff, No. 00-1192, Texas Supreme Court (Nov. 5, 2002).