December 2000
Volume 64 |
Number 12
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| Surgeon
Liability for Nurse Anesthetists: Fact or Fiction? |
Judith Jurin Semo, Esq.
Whenever a physician works with a nonphysician
allied health practitioner, a legitimate concern exists as to
the circumstances under which the physician may be held responsible
for the actions of the nonphysician. In some cases, the nonphysician
may be an assistant who directly assists the physician in providing
services to the patient, accepting instruction as to each specific
action to be taken. In other cases, the nonphysician provider
may be trained in an area entirely different from the physician's
specialty and may perform services needed for patient care, but
they may be separate and distinct from the specific services the
physician is providing.
Overview
Employers are responsible for the actions
of their employees performed in the reasonable scope of their
employment under the doctrine of respondeat superior, under which
the master is responsible for the acts of the servant. Often in
hospitals, ambulatory surgical centers and physician offices,
however, personnel employed by different entities combine to provide
services to patients, and several different parties can be sued
in the event of injury. Generally, in cases involving adverse
anesthesia incidents, at least three parties may be named defendants:
the hospital or other facility at which the surgical procedure
took place, the surgeon or other operating physician and the anesthesiologist
and/or the nurse anesthetist involved.
Physicians (and hospitals) may be held
accountable for the actions of persons who are not their employees
based upon a variety of theories of vicarious liability, under
which the law of agency is used to impose liability on a physician
who possesses a right to control the actions of the nonemployee
health care provider. The law of agency sets forth principles
regarding the circumstances under which one person can be held
accountable for the actions of another. Often, the nonemployee
is said to become the borrowed servant of the physician. Courts
differ on the precise rationale under which vicarious liability
should be imposed. Some courts look to whether the physician had
the right to control the nonemployee, while others courts will
impose liability only if the physician actually took steps to
control the person.
A more outdated theory of liability known
as captain of the ship once was a basis for finding the surgeon
responsible for every person working in the operating room, without
regard to whether the surgeon did or did not try to exert control
or even knew what the other personnel were doing. That theory
has fallen into disfavor as courts recognize that today's operating
rooms are more complicated facilities with more specialized personnel,
some of whom are skilled in areas in which the surgeon has little
training.
Physicians typically ask for a snapshot
of the legal principles and want to know in a few words under
what circumstances they can be held responsible. The truth is
that the cases in this area do not lend themselves to easy characterization.
This article will provide an overview of some of the theories
and facts relied upon by the courts in evaluating liability of
a physician (or hospital) for a nonemployee. Many times the cases
involve a nonemployee nonphysician, including nurses and nurse
anesthetists. In some instances, the facts concern a nonemployee
physician, including anesthesiologists. Readers should recognize
that courts in different states may follow different principles
and that the procedural history of the case, including the different
parties who may have settled before a case is decided, also may
bear on the outcome.
Vicarious Liability
Determining vicarious liability is a fact-intensive
process that depends upon the facts of the incident giving rise
to the lawsuit. The theories that the parties present to the court
also affect the outcome. The cases fall along a spectrum: A surgeon
may be held legally responsible for the actions of a nurse anesthetist
if the surgeon takes steps to intervene in the provision of anesthesia
or if the surgeon accepts responsibility for the actions of the
nurse anesthetist. A hospital may be held accountable for the
actions of nonemployee nurse anesthetists if the hospital's own
policies are not followed. Some courts reason that a surgeon can
be held accountable if the surgeon had the right to control the
actions of the nonemployee without regard to what steps the surgeon
actually did or did not take to control the actions of the nonemployee.
In determining whether the surgeon had the right to control the
nonemployee, courts look at a variety of factors, including the
facts of the case, expert testimony regarding the standard of
practice and any hospital policies regarding the conditions under
which a nonphysician may practice. Finally, at the far end of
the spectrum, the more extreme view is represented by the “captain
of the ship doctrine that many courts now decline to follow.
| Physicians typically ask for a snapshot of the legal principles
and want to know in a few words under what circumstances they
can be held responsible. The truth is that the cases in this
area do not lend themselves to easy characterization. |
Significantly, courts generally do not
consider the scope of practice of the nurse anesthetist or other
nonphysician practitioners in reaching their decisions. Instead,
the courts look at doctrines of the law of agency discussed above
as well as the hospital or department of anesthesiology policies
or protocols regarding practice by nurse anesthetists.
That is not to say that the licensing provisions
governing the nonphysician's practice are not relevant. For example,
the Supreme Court of Georgia* reviewed the licensing statute governing
nurse anesthetist practice in order to assess the liability of
an anesthesiology practice and a hospital where anesthesia was
administered by a student nurse anesthetist under the supervision
of a physician's assistant. The court found that the anesthesiology
practice which employed the physician's assistant had breached
its duty in allowing an uncertified student nurse anesthetist
to administer anesthesia while not under the direction and responsibility
of an anesthesiologist as required by Georgia law. Similarly,
the hospital was found liable for violating its legal duty by
using a surgical consent form stating that anesthesia would be
administered under the direct supervision of an anesthesiologist
and by knowingly permitting the anesthesiology practice to violate
its statutory duty.
So what guidance can be drawn from the
cases?
Right to Control
In a 1994 decision of the North Carolina
Supreme Court, the court found the surgeon responsible for the
actions of the nurse anesthetist with whom he had worked because
the surgeon was capable of exercising control over the nurse anesthetist,
knew the principles of anesthesia administration and had exercised
control on at least one occasion during the procedure. In reaching
this decision, the court relied in part on the hospital's anesthesia
manual, which provided that anesthesia care would be provided
by nurse anesthetists working under the responsibility and supervision
of the surgeon doing the case. The conclusion that the surgeon
had the right to control the nurse anesthetist was supported by
the fact that the hospital did not employ or contract with an
anesthesiologist.
Interestingly, the court departed from
the decisions of other courts and decided that the surgeon could
be held liable for the negligence of a skilled assistant if the
surgeon in fact possessed the right to control that assistant
at the time of the assistant’s negligent act.
Actual Control
A Maryland appellate court decision illustrates
how courts have moved away from the captain of the ship doctrine
and instead have looked at whether the surgeon exercised actual
control over the negligent nonemployee assistant before imposing
liability. In this case, an anesthesiologist had evaluated the
patient as a high-risk patient for anesthesia and had prescribed
the anesthesia plan but had not specified the anesthetic agents
to be used and was not present when the hospital-employed nurse
anesthetist induced the patient. The plaintiff's expert testified
at trial to several violations of the standard of care by the
anesthesiologist and by the nurse anesthetist. The court declined
to impose liability on the surgeon, finding that there was no
evidence that the surgeon had in any way supervised or controlled,
had attempted to control or had the right to control the conduct
of the anesthesiologist and nurse anesthetist.
| The controlling factor in determining whether a surgeon
is to be held accountable for a nurse anesthetist's actions
is whether, based on the facts of the case, the surgeon actually
exercised control or had the right to exercise control over
the nurse anesthetist during the surgical procedure. |
In another case where a patient was injured
in the course of the administration of anesthesia by a nurse anesthetist
who was supervised by his employer-anesthesiologist, the court
determined that the operating surgeon could not be held accountable
for the administration of anesthesia. The court stated that the
surgeon would not be held responsible in the absence of actual
control.
The lack of control over the way in which
a nurse anesthetist provides services has served as a rationale
for finding that a hospital was not vicariously liable for the
actions of a nurse anesthetist. In a 1995 decision, a Texas appellate
court relied on uncontroverted testimony that the nurse anesthetist
was an independent contractor who determined with the surgeon,
outside the parameters and control of the hospital, the details
of providing anesthesia to the injured patient. (The liability
of the surgeon and the nurse anesthetist, both of whom had settled
with the plaintiff, was not at issue.)
Violation of Hospital Policies
Where hospital policies relating to the
administration of anesthesia are not followed, the hospital is
subject to liability for the anesthesia-related injury. In an
appellate court decision in Texas, the hospital was held vicariously
liable for the injury caused to a patient when a nurse anesthetist
administered anesthesia for an emergency cesarean delivery. The
hospital’s anesthesia department policies required that an anesthesiologist
perform the preanesthesia evaluation, discuss the anesthesia plan
with the patient and supervise a nurse anesthetist by being physically
present or immediately available in the operating suite. The obstetrician
testified that he did not supervise the nurse anesthetist and
that he understood that the anesthesiologists were immediately
available if help was needed.
The Supreme Court of Alabama reached a
similar result in a case in which a patient died following the
administration of anesthesia by a nurse anesthetist who had not
notified his anesthesiologist-employer before administering anesthesia.
The question before the court was the potential liability of the
hospital for the actions of the nurse anesthetist. The court reasoned
that the hospital maintained detailed guidelines and manuals concerning
the duties of nurse anesthetists and that the disputed facts concerning
the degree of control retained by the hospital over the nurse
anesthetist was an issue of fact for the jury to decide.
Specialized Training
Several courts that have considered the
potential vicarious liability of surgeons for the actions of nurse
anesthetists have noted the specialized training of nurse anesthetists
in ruling that the surgeons were not responsible for the nurse
anesthetists’ actions. An appellate court in Florida stated that
the nurse anesthetist was not under the immediate personal supervision
of the surgeon and that she performed her duties independently.
The court noted that the nurse anesthetist was certified by the
state as a nurse anesthetist and was authorized to practice under
a protocol approved by the medical staff. The court concluded
that the nurse anesthetist could not be characterized as a mere
nurse, and therefore, the surgeon was not responsible for her
actions.
A Tennessee court also declined to impose
liability on the surgeons when the hospital-employed nurse anesthetist
and a student nurse anesthetist administered anesthesia. The court
stated that the question was whether the surgeons exercised control
over the manner in which the nurse anesthetist acted. The court
took note of the hospital protocols that authorized the nurse
anesthetist to administer anesthesia to patients in the absence
of the anesthesiologist. The court noted that a nurse anesthetist
is a highly trained specialist acquiring skills in the course
of his or her training that a surgeon does not possess. The surgeons
did not select the drugs used to anesthetize the patient or direct
the procedures used by the nurse anesthetists. The court concluded
that the nurse anesthetist was not the borrowed servant of the
surgeons and the surgeons were not liable for the actions of the
nurse anesthetist and student nurse anesthetist.
State Law Issues and Points Raised by
the Plaintiff
A 1999 decision of the Supreme Court of
Kansas illustrates how state law and the specific allegations
asserted by the plaintiff can affect the outcome of the case.
The case involved a patient who died following the administration
of anesthesia by a nurse anesthetist. Under Kansas law, the defendant
obstetrician could not be held vicariously liable for the nurse
anesthetist's actions because both of them were covered by the
state compensation fund. The plaintiff contended that the obstetrician
had been negligent in failing to direct and monitor the nurse
anesthetist in the administration of anesthesia. The court found
that it was proper to allow the jury as the trier of fact to decide
the nature and extent of the obstetrician's duty of direction.
Accordingly, the court affirmed the finding that the obstetrician
had a duty to direct the administration of anesthesia by the nurse
anesthetist. The lower court had based its finding on the nursing
statute that provided that a nurse anesthetist functions in an
interdependent role as a member of a physician-directed health
care team.
Conclusion
The controlling factor in determining whether
a surgeon is to be held accountable for a nurse anesthetist's
actions is whether, based on the facts of the case, the surgeon
actually exercised control or had the right to exercise control
over the nurse anesthetist during the surgical procedure. If not,
the surgeon is likely not to be held accountable for the actions
of the nurse anesthetist or adverse patient outcomes resulting
from the administration of anesthesia. Under this control or right
to control test, the scope of practice of the nurse anesthetist
under state law is less important. Whatever state law provides,
if a hospital requires some level of physician oversight of anesthesia
services, or if the surgeon intervenes in the administration of
anesthesia, the surgeon may be found liable for a nurse anesthetist's
actions.
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Judith
Jurin Semo, Esq., is with the law firm of Squire, Sanders
& Dempsey, Washington, D.C., which serves as ASA's legal counsel. |
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