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            Hospital employees owe no duty to a patient to intervene in a physician's performance of a procedure on the patient.  In the case of Downey v. Mitchell, 835 S.W.2d 554 (Mo. Ct. App. 1992) the Court of Appeals of Missouri found that three nurses and an anesthesiologist did not have a duty to intervene in a physician's performance of an allegedly unauthorized tubal ligation.  Because the employees could not be negligent, the court found that the hospital that employed them could not be vicariously liable to the patient for the employees' failure to intervene.

            In this case, the plaintiff, Lisa Downey, was admitted to the defendant hospital by her treating physician.  The physician was not a hospital employee.  The plaintiff allegedly consented to child birth by Cesarean Section.  Her medical record reflected this authorization.  Her physician, a surgeon, performed the Cesarean Section, but also performed a tubal ligation.  The plaintiff alleged that the hospital employees who assisted the physician failed to monitor and review her records which showed that she did not consent to the performance of a tubal ligation.  She further alleged that they stood by and watched instead of intervening after the physician began to exceed the bounds of the consent.  On this basis, the plaintiff attempted to impose vicarious liability on the hospital for the alleged negligence of its employees. 

            The court disagreed with the plaintiff's theory of negligence, and dismissed her complaint.  The court held that in order to find negligence the plaintiff must show 1) the existence of a duty on the part of the defendant to protect plaintiff from injury 2) failure of the defendant to perform that duty, and 3) injury to the plaintiff resulting from such failure.   The court found that the facts set forth by the plaintiff failed to show the existence of a duty owed to the plaintiff.  The court found that there was no duty on the part of the nurses or the anesthetist to intervene when the physician began the ligation procedure.  The plaintiff alleged that the hospital employees assisting the surgery failed to review the records that documented the plaintiff's consent, and by failing to review the records, they failed to discover the absence of consent to tubal ligation.

            The court emphatically stated, that a hospital and its employees are not required to interfere with the physician-patient relationship.  A hospital incurs no vicarious liability because of the negligence of a non-employee physician who performs surgery in the hospital.  The court specifically stated that "[I]t is not the function, much less the duty, of a nurse [or an anesthesiologist] to exercise supervisory control over a surgeon's performance of a surgical procedure."  Absent a duty on the part of a hospital employee, there can be no vicarious liability of the hospital, because there is no negligence of any employee.

            This case can be contrasted with cases where hospital employees do owe a duty to a patient.  Courts have found that hospital employees do not have an obligation to intervene in the physician relationship when a treating physician is present in the and has assumed responsibility for the patient.  However, courts have found that prior to the time the physician is present, and has taken responsibility for patient care, the patient has a reasonable expectation of care and attention from the hospital staff.  An example of this situation is an emergency room setting.  In an emergency room, until the time the primary physician appears, the hospital staff owes a duty to diagnose and treat a patient with the accepted standard of medical care.  Failure to meet this duty can result in liability of the hospital and its staff.  However, once the primary physician appears on the scene and takes control, the hospital and its staff are relieved of any duty to attend to the patient, and have no duty to intervene and arrange for alternative treatment for the patient.  Court's have supported this position, by giving great respect for the physician patient relationship and showing great reluctance to require hospital employees to intervene and interfere with this relationship. 

            Nonetheless, hospital's and its employees should be careful because this reasoning applies only if the physician has assumed responsibility for the patient's care.  Either before or after the physician has taken this responsibility, employees and the hospitals they work for can be at risk for liability.


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When Hospital Staff is Responsible for What Happens to a Patient

by Attorney Frank E. Reardon

May 1993