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In Brown v. Flowe, the Appeals Court of North Carolina considered the issue of whether an attending physician can be vicariously liable for the negligence of a resident physician who is a hospital employee.


The defendant, Dr. Kenneth Flowe, was an instructor with the East Carolina University School of Medicine. Pitt County Memorial Hospital served as East Carolina's primary teaching hospital. In July 1993, Mary Louise Brown was brought to Pitt County's emergency department with complaints of abdominal pain, nausea, and vomiting. After being diagnosed with acute gallbladder disease, Brown was admitted by Dr. Flowe for gallbladder surgery. Dr. Flowe selected a fourth-year resident to assist with the operation.


The resident started the surgery by inserting an instrument known as a trocar into Brown's abdomen. When the resident told Dr. Flowe that she was having difficulty inserting the trocar, he advised her to use slow, steady pressure. The trocar slipped and pierced Brown's liver. After cleaning the blood from surrounding tissue and inspecting the area for additional blood and swelling, Dr. Flowe continued the surgery by placing another trocar in the upper right abdominal region.


Within a few minutes, the anesthesiologist advised Dr. Flowe that the patient's blood pressure had dropped dramatically. After determining that the drop in blood pressure was not caused by an underlying heart condition, Dr. Flowe made an incision into Brown's abdomen to further investigate the source of the blood loss, and discovered a large amount of blood in the peritoneal cavity. Although Dr. Flowe attempted to resuscitate Brown, she died from severe blood loss.


The administrator of Brown's estate brought a medical malpractice claim against the resident and the hospital. The case was settled for $178,486. Then she filed a lawsuit against Dr. Flowe. In the complaint, the administrator alleged that Dr. Flowe was vicariously liable for the negligent treatment provided by the resident.


In support of her claim of vicarious liability, the administrator introduced documents at trial that outlined the affiliation between East Carolina University School of Medicine and Pitt County Memorial Hospital. The hospital's bylaws expressly stated that only a licensed physician with clinical privileges could be directly responsible for the treatment and diagnosis of a patient. The bylaws also stated that the residents could only practice under the direction of the department chairman or his delegate.


Based upon these documents, the trial court found that the hospital delegated the right to control the manner in which its patients were treated to the department chairs or their delegates. There was also testimony that Dr. Flowe exercised this right to control when he advised the resident to apply steady pressure while inserting the trocar. The trial court found that the attempt to insert the trocar was the act of negligence that led to Brown's death, and awarded $250,000 in damages.


On appeal, Dr. Flowe argued that he could not be held vicariously liable for the negligent acts of the resident since he was not her employer. In its decision, the North Carolina Appeals Court acknowledged the general rule of law that physicians who exercise due care cannot be held liable for the negligence of the nurses, attendants, residents, or interns who are not their employees. However, the Court went on to explain that there are exceptions to their rule when the physician exercises the right to control the resident's acts.


The Appeals Court agreed that the evidence at trial showed that Dr. Flowe was granted and exercised his right to control the resident's treatment of his patient. Therefore, the Appeals Court upheld the vicarious liability finding.


In Massachusetts, the Supreme Judicial Court has not extended responsibility for the acts of one physician to another. In a 1963 decision, the Court considered whether a surgeon could be held liable for a cut down performed by a resident under his supervision. The trial court had previously ruled that the surgeon could not be held responsible for the negligence of another physician, even if that physician was somewhat under his direction and control. The SJC agreed with this standard as long as the decision to allow the resident to participate in the surgery met standards of medical practice at the time.


A physician may be responsible, however, for allowing practitioners under her direction and control to practice beyond their level of expertise or without adequate supervision. Working with nurse practitioners and physician assistants may also give rise to such issues. A physician or hospital-based practice needs to establish clear guidelines regarding what functions may be performed by such professionals, and the degree of supervision required for their patient care activities. Courts have also cautioned that if a physician should have foreseen that the acts of another provider could cause serious harm to the patient, the physician would be obliged to protect the patient from such harm. Therefore, liability might be premised upon whether a physician negligently permits any unqualified or incompetent residents, nurses, or other health care providers to treat her patients.


Changing health systems in every state are creating new associations among care providers, and some involve employer/employee relationships. The North Carolina case is further support for the theory that physicians who employ other providers may be vicariously liable for the acts of their provider employees. Reviewing and strengthening these relationships to assure accountability and communicate responsibility will improve patient care while diminishing the employer physician's vulnerability.

Vicarious Liability for Negligence of Residents

by Attorney Frank E. Reardon

November 1998

Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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