Davis, Roy W., Jr.

English

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 32 | Number 1 Article 1712-1-1953Torts -- Physician and Surgeon -- Liability for Actsof Assistants -- Respondeat SuperiorRoy W. Davis Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationRoy W. Davis Jr., Torts -- Physician and Surgeon -- Liability for Acts of Assistants -- Respondeat Superior, 32 N.C. L. Rev. 138 (1953).Available at: http://scholarship.law.unc.edu/nclr/vol32/iss1/17NORTH CAROLINA LAW REVIEWtury doctrine of immunity for charitable hospitals while an increasingnumber of states turn toward a rule of liability more in keeping withtwentieth century public policy.JEANNE OWENTorts-Physician and Surgeon-Liability for Acts of Assistants-Respondeat SuperiorAn action for damages, involving two appeals to the North CarolinaSupreme Court,' arose out of the death of plaintiff's intestate followingan operation performed by defendant physician. At the trial stage non-suits were entered as to defendant's hospital and nurse, and a verdict wasrendered in favor of the physician. On appeal2 the non-suits wereaffirmed3 and a new trial was ordered as to the physician because oferror in the trial judge's charge to the jury.4 On retrial, a verdict wasagain rendered in favor of the physician. This was reversed and anothertrial ordered as to the physician,5 the court holding that the trial judgeerred when he instructed the jury that the nurse was not an "employee"of the physician and that the physician would not be responsible for thenegligence of the nurse, thus excluding the doctrine of respondeat su-perior from consideration.The responsibility of a physician for the acts of his assistants hasbeen the subject of litigation in other courts, and the resulting decisionsmake it clear that a physician may be liable in this situation (1) for hisown negligence, in causing or allowing an assistant to injure a patient,or (2) for the assistant's negligence, which is imputed to the physicianunder the principles of agency.A physician may be personally negligent in employing, retaining orusing an incompetent assistant, as when he engages a layman to adminis-ter chloroform.6 It is his legal -duty to see that the entire treatment ofhis patient is carried on correctly, but he may properly delegate simpletasks to his assistants, and thereby relieve himself of legal responsibility.7'Jackson v. Joyner, 236 N. C. 259, 72 S. E. 2d 589 (1952) ; Jackson v. MountainSanitarium, 234 N. C. 222, 67 S. E. 2d 57 (1951), rehearing denied, 235 N. C. 758,69 S. E. 2d 29 (1952).2 Jackson v. Mountain Sanitarium, 234 N. C. 222, 67 S. E. 2d 57 (1951).3Id. at 225, 67 S. E. 2d at 60.The judge instructed the jury in such a manner as to require expert testimonyto establish the physician's liability, and this was held error. The court also heldthat the trial judge erred in not admitting a written report offered in evidence bythe plaintiff. Id. at 255, 67 S. E. 2d at 60.'Jackson v. Joyner, 236 N. C. 259, 72 S. E. 2d 589 (1952).'Nations v. Ludington Lumber Co., 133 La. 657, 63 So. 257 (1913). See,Hohenthal v. Smith, 114 F. 2d 494, 496 (D. C. Cir. 1940) ; Reynolds v. Smith, 148Iowa 264, 269, 127 N. W. 192, 194 (1910); Morrison v. Henke, 165 Wis. 166, 167,160 N. W. 173, 174 (1917).Spears v. McKinnon, 168 Ark. 357, 270 S. W. 524 (1925) ; Funk v. Bonham,151 N. E. 22 (Ill. Ct. App. 1926) ; Hunner v. Stevenson, 122 Md. 40, 89 Atl. 418(1913) ; Guell v. Tenney, 262 Mass. 54, 159 N. E. 451 (1928) ; Saucier v. Ross,(Vol. 32NOTES AND COMMENTSThus a physician may authorize a nurse to place hot water bottles orhot flat-irons against the body of a patient after an operation, and he isnot liable for the nurse's negligence in doing this.8 However, somecourts will not allow the physician to escape responsibility by assigningan assistant the task of counting the gauzes or sponges used in a surgicaloperation, and relying on the assistant to determine that all the gauzesplaced in the patient's body have been removed.) Other courts are notso strict, and reason that the physician bears such complicated and variedresponsibilities that he should be allowed to delegate more importanttasks to his assistants, including the counting of gauzes.10 The physi-cian is also liable for negligently instructing or supervising an assistantwho is administering treatment, and the assistant is not liable in thissituation when he does no more than carry out the specific instructionsof the physician or otherwise meets the legal duty required of him."In each of these situations, it is the physician's own negligence that isthe basis for his liability, if any, and the doctrine of respondeat superioris not applied.Whenever the issue is whether the physician is liable for the negli-gence of his assistants, the problem arises as to what establishes therelationship of principal and agent. If it appears that the assistant is inthe pay of the physician, and is acting under the immediate control ofthe physician, the relationship is said to exist.' 2 Again, the relationshipobviously exists whenever the assistant is in the pay of the physicianand is carrying out his general 'duties, or following some general instruc-tion of the physician, although not under his immediate control.'3  Not112 Miss. 306, 73 So. 49 (1916) ; Niebel v. Winslow, 88 N. J. L. 191, 95 Atl. 995(1915) ; Stewart v. Manasses, 244 Pa. 221, 90 Atl. 574 (1914) ; Jackson v. Han-sard, 45 Wyo. 201, 17 P. 2d 659 (1933) ; Jewison v. Hassard, 26 Man. L. R. 571,28 Dom. L. R. 584 (Canada 1916).8Olson v. Bolstad, 161 Minn. 419, 201 N. W. 918 (1925) (flat-irons); Dals-gaard v. Meierding, 140 Minn. 443, 168 N. W. 584 (1918) (flat-irons) ; Stewart v.Manasses, 244 Pa. 221, 90 Atl. 574 (1914) (hot water bottle); Malkowski v.Graham, 169 Wis. 398, 172 N. W. 785 (1919) (hot iron).'Spears v. McKinnon, 168 Ark. 357, 270 S. W. 524 (1925) ; Ault v. Hall, 119Ohio St. 422, 164 N. E. 518 (1928) ; Jackson v. Hansard, 45 Wyo. 201, 17 P. 2d659 (1933) ; Walker v. Holbrook, 130 Minn. 106, 153 N. W. 305 (1915).1 Funk v. Bonham, 151 N. E. 22 (Ill. Ct. App. 1926) ; Hunner v. Stevenson, 122Md. 40, 89 AtI. 418 (1913) ; Guell v. Tenney, 262 Mass. 54, 159 N. E. 541 (1928) ;Niebel v. Winslow, 88 N. J. L. 191, 95 Atl. 995 (1915) ; Jewison v. Hassard, 26Man. L. R. 571, 28 Dom. L. R. 584 (Canada 1916)." Davis v. Rodman, 147 Ark. 385, 227 S. W. 612 (1921) ; Kershaw v. Tilbury,214 Calif. 679, 8 P. 2d 109 (1932) ; Everts v. Worrell, 58 Utah 238, 197 Pac. 1043(1921) ; Lawson v. Crane, 83 Vt. 115, 74 Atl. 641 (1909) ; Miles v. Hoffman, 127Wash. 653, 221 Pac. 316 (1923)."' More specifically, this is the "employer-employee" relationship. Boetcher v.Budd, 61 N. D. 50, 237 N. W. 650 (1931) ; Aderhold v. Stewart, 172 Okla. 72, 46P. 2d 340 (1935)." This, again, is more specifically described as the "employer-employee" rela-tionship. Mullins v. Du Vall, 25 Ga. App. 690, 104 S. E. 513 (1920); Simons v.Northern Pacific Ry., 94 Mont. 355, 22 P. 2d 609 (1933) ; Gill v. Selling, 124 Ore.587, 267 Pac. 812 (1928). See, Rath v. Craddock, 65 Ohio App. 135, 29 N. E. 2d1953]NORTH CAROLINA LAW REVIEWall decisions are so clear cut, however, there being many instances wherethe assistant who aids the patient's physician is paid and retained by thehospital, or by the patient himself. The weight of authority in thesesituations is that the assistant is the agent of the physician when andif the latter is in "control" of the assistant.' 4The courts will ordinarily consider the physician in "control" whenhe is in charge of treatment, and is present in the room with the patientand the assistant during the administration of treatment. 15 It is im-portant that the physician be present in the room, and that the operationor treatment still be in progress, for there is no "control" whenever thephysician is not present, or during "after-treatment," even though theassistant, not an "employee," may be acting in obedience to the physi-cian's orders.' 6 If the physician is liable under the doctrine of respondeatsuperior, it is of course necessary to show that the assistant was negli-gent, because this basis for liability is the negligence of the assistantwhich is imputed to the physician.Cases wherein a physician's liability is based on his own negligencein causing an assistant to injure a patient, and those where in liabilityis based on the negligence of his assistant, are often much alike.' 7 There-fore it is difficult to determine what reasoning the court has used inestablishing the liability of the physician, unless the court specifically426 (1940) (Assistant physician, retained by employer physician as an employee,turned a patient over to a nurse, also an employee, who placed the patient in thehands of a "girl in blue," also an employee; patient sued the assistant physician andalleged that she was injured by the acts of the "girl in blue," but the court heldthat he was not liable, for one employee is not responsible for the negligence of afellow employee)." Ales v. Ryan, 8 Cal. 2d 82, 64 P. 2d 409 (1936) ; Jordon v. Touro Infirmary,123 So. 726 (La. Ct. App. 1922), explained in Messina v. Societe Francaise, 170So. 801, 803 (La. Ct. App. 1936) ; Hall v. Enid General Hospital, 194 Okla. 446,152 P. 2d 693 (1944); Randolph v. Oklahoma City General Hospital, 180 Okla. 513,71 P. 2d 607 (1937); McConnell v. Williams, 361 Pa. 355, 65 A. 2d 243 (1949)."Gray v. McLaughlin, 207 Ark. 191, 179 S. W. 2d 686 (1944) ; Ales v. Ryan,8 Cal. 2d 82, 64 P. 2d 409 (1936) ; Jordon v. Touro Infirmary, 123 So. 726 (La.Ct. App. 1922), explained in Messina v. Societe Francaise, 170 So. 801, 803 (La.Ct. App. 1936) ; Noren v. American School of Osteopathy, 298 S. W. 1061 (Mo.Ct. App. 1927), affd in 223 Mo. App. 278, 2 S. W. 2d 215 (1928) ; Hall v. EnidGeneral Hospital, 194 Okla. 446, 152 P. 2d 693 (1944) ; Aderhold v. Bishop, 94Okla. 203, 221 Pac. 752 (1923) ; McConnell v. Williams, 361 Pa. 355, 65 A. 2d 243(1949).26 Hohenthal v. Smith, 114 F. 2d 494 (D. C. Cir. 1940) ; Harlan v. Bryant, 87F. 2d 170 (7th Cir. 1936) ; Harris v. Fall, 177 Fed. 79 (7th Cir. 1910) ; Sheridan v.Quarrier, 127 Conn. 279, 16 A. 2d 479 (1940) ; Messina v. Societe Francaise, 170 So.801 (La. Ct. App. 1936) ; Blackman v. Zeligs, 90 Ohio App. 304, 103 N. E. 2d 13(1951); McConnell v. Williams, 361 Pa. 355, 65 A. 2d 243 (1949); Meadows v.Patterson, 21 Tenn. App. 283, 109 S. W. 2d 417 (1937).Jackson v. Hansard, 45 Wyo. 201, 17 P. 2d 659 (1933) (Physician held liablefor his own negligence in allowing an assistant to leave a gauze in a patient'sbody) ; Armstrong v. Wallace, 37 P. 2d 467 (Cal. Ct. App. 1934) (Physician heldliable for negligence of an assistant under his "control," who left a gauze in thepatient's body.).[Vol. 32NOTES AND COMMENTSexplains itself.' 8 The writer suggests that this distinction should bespelled-out, because it may have the very practical significance of de-termining whether a judgment will be ordered against the assistant, andin the absence of the agency relationship or the assistant's negligence, thephysician may be personally liable for a failure to exercise the properdegree of skill, care and judgment that he owes his patient.'9The North Carolina decisions are fundamentally in accord with theweight of authority in other jurisdictions,20 except for a dictum in theprinciple case.2 1 There the court awarded a non-suit to the nurse onfirst appeal, and on later appeal found reversible error in the trial judge'scharge that the negligence of the nurse could not be imputed to the phy-sician. This seems inconsistent because the non-suit indicated that thenurse was not negligent, but the dictum explained that under these cir-cumstances the nurse need not stand responsible for his own "tortuousact," although he might have been negligent and the physician might beliable for the nurse's negligence under the doctrine of respondeat su-perior.22  This was said to be an exception to the law of agency.23  A"S Frequently the assistant is not joined in the action, and his liability, whichwould show whether he was negligent and help to determine whether the doctrineof respondeat superior was a part of the court's reasoning, is not in issue."' The positive duty of the physician is well-stated in Nash v. Royster, 189 N. C.408, 127 S. E. 356 (1925). See, PRossm, LAw oF TORTs 237 (1941).-o In Bowditch v. French Broad Hospital, 201 N. C. 168, 159 S. E. 350 (1931)where the hospital arranged for a nurse to serve a patient and help a physician,and the nurse was paid by the patient, the Court indicated that the nurse might bean independent contractor or an agent of the physician, but held that she was notthe agent of the hospital.Where a nurse placed an improper and harmful solution in a newborn baby'seyes while the physician was occupied with the mother, the nurse was held not tobe the agent of the physician. Covington v. Wyatt, 196 N. C. 367, 145 S. E. 673(1928), discussed in 7 N. C. L. Rmv. 330 (1929). This may mean that the courtwill apply the "control" test of agency in narrow fashion, or it may be explainedthat an emergency or complicated task destroys the physician's "control" over theassistant. No cases were found in which a physician was held liable for the neg-ligence of his assistant under the doctrine of respondeat superior, although such adecision was explicitly authorized in Nash v. Royster, 189 N. C. 408, 412, 127 S. E.356, 359 (1925).In Byrd v. Marion General Hospital, 202 N. C. 337, 162 S. E. 738 (1932), anurse, employed by a hospital but acting under the direction of an attending phy-sician, injured a patient. The patient sued the managing physician of the hospitaland the nurse, but not the attending physician. The court reversed a jury verdictagainst the managing physician only, and held that since the nurse was not negli-gent, the managing physician could not be liable. The court states the rule ofthe Byrd case in these words: ". . . if the physician [referring to the attendingphysician who was not joined] is present and undertakes to give directions, or ...stands by, approving the treatment administered by the nurse, unless the treatmentis obviously negligent and dangerous, ... in such event the nurse can then assumethat the treatment is proper under the circumstances, and such treatment, when thephysician is present, becomes the treatment of the physician and not that of thenurse." Id. at 343, 162 S. E. at 741." Jackson v. Joyner, 236 N. C. 259, 72 S. E. 2d 589 (1952).22 Id. at 262, 72 S. E. 2d at 592 (". . . it is observed that the principle ...stands as an exception to the general rule that an agent who does a tortuous act is1953]NORTH CAROLINA LAW REVIEWpossible explanation of this dictum is that the court took a decisionindicating that a physician might be liable for his own negligence incausing an assistant to injure a patient, and read into it an applicationof the doctrine of respondeat superior.It is submitted, in the light of decisions of this and other jurisdic-tions, that the test for determining the liability of any physician or anyassistant, free from all exceptions, should be the ordinary one of whethereach was negligent; or if the assistant alone is negligent, whether theagency relationship existed.Roy W. DAVIS, JR.Wills-Revocation-Attempted Revocation of Unexecuted CopyThe testatrix's notation of "Null and Void, S.H.K." at the top ofan unexecuted carbon copy of her will was recently held by the Penn-sylvania Supreme Court to be an effective revocation.' The court foundthe notation to be "other writing" within the meaning of that jurisdic-tion's statutory provision regarding revocation of testamentary papers.-Although the intention of the testator to nullify may be evidenced byhis words and actions,3 the privilege of execution or revocation of willsis granted by the state, and as a corollary, the testator must act in com-plete accord with the controlling statute in order to make or nullify awill.4 Ordinarily, the statutes provide three permissible methods ofrevocation of a will :5 (1) execution of a subsequent will or codicil; (2)making of some other writing declaring the will revoked; and (3) bytearing, burning, cancelling, or obliterating the document itself.0  Thusthe distinction between a "cancellation" as a method of revocation andnot relieved from liability by the fact that he acted at the command or under thedirection of his principal.").2 ' Such an exception is clearly contradicted in Ybara v. Spangard, 25 Cal. 2d486, 492, 154 P. 2d 687, 690 (1945) : "Any defendent who negligently injured him[the patient], and any defendant charged with his care who so neglected him as toallow injury to occur, would be liable. The defendant employers would be liablefor the neglect of their employees; and the doctor in charge of the operation wouldbe liable for the negligence of those who became his temporary servants for thepurpose of assisting in the operation." For a statement of the law applicable tosituations herein discussed, see Hohenthal v. Smith, 114 F. 2d 494 (D. C. Cir.1940).'In re Kehr's Estate, 373 Pa. 473, 95 A. 2d 647 (1953).- PA. STAT. tit. 20, § 180.5 (1950).' The testatrix in the principal case did not have the original document butafter writing on the carbon, she wrote her attorney stating that she had cancelledher will.' Parker v. Foreman, 252 Ala. 77, 39 So. 2d 574 (1949) ; Re Johannes' Estate,170 Kan. 407, 227 P. 2d 148 (1951) ; Crampton v. Osburn, 356 Mo. 125, 201 S. W.2d 336 (1947) ; Davis v. King, 89 N. C. 441 (1883) ; Churchill's Estate, 260 Pa.94, 103 Atl. 533 (1918).' The North Carolina statute is typical. N. C. GEN. STAT. § 31-5 (1950).O Revocation by a subsequent will or codicil is not within the purview of thisnote. For a discussion of this, see Zacharias and Maschinot, Revocation and Re-vival of Wills, 25 CI-KENT L. REv. 185, 201 (1947).[Vol. 32

Torts -- Physician and Surgeon -- Liability for Acts of Assistants -- Respondeat Superior

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Torts -- Physician and Surgeon -- Liability for Acts of Assistants -- Respondeat Superior

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