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Liability for Nursing Negligence in the Operating Room

Published online by Cambridge University Press:  28 April 2021

Jane Greenlaw
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Extract

In a lawsuit involving nursing negligence in the course of an operative procedure, generally the question arises as to whether liability for the nurse's negligence will rest on the nurse's employer or on the operating physician.

Imposition of vicarious liability for a plaintiff's injury is based upon a master-servant relationship between the negligent actor and a third party, such as a hospital or surgeon. Under the doctrine of respondeat superior, liability is imposed upon an employer for the negligent acts of employees, which arise in the course and scope of employment. The operating physician, however, may also be declared liable through the application of two legal mechanisms: the doctrines of captain of the ship and borrowed servant.

Under the captain of the ship doctrine, responsibility is imposed upon the physician because he is the one who is looked to by the patient as responsible for the patient's welfare and safety generally.

Type
NLE Rounds
Information
Law, Medicine and Healthcare , Volume 10 , Issue 6 , October 1982 , pp. 222 - 224
Copyright
Copyright © 1982 American Society of Law, Medicine & Ethics

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References

A few courts have developed flexible views and have held that a servant can serve two masters, thus holding the physician and employer jointly and severally liable for the same act, but this view is not widely recognized. See, e.g., Willinger v. Mercy Catholic Medical Center, 362 A.2d 280 (Pa. App. 1976) (nurse-anesthetist under supervision of anesthesiologist failed to monitor properly the administration of anesthesia; hospital and anesthesiologist were held liable).Google Scholar
327 F.2d 42 (3d Cir. 1964).Google Scholar
180 Cal. Rptr. 152 (Cal. App. 1982) [hereinafter referred to as Truhitte].Google Scholar
Id. at 160 (citations omitted).Google Scholar
Id. at 157, quoting Marsh v. Tilley Steel Co., 162 Cal. Rptr. 320, 323-24 (Cal. 1980) (citations omitted).Google Scholar
Truhitte, , supra note 3, at 157. 7.Google Scholar
433 N.E.2d 593(Ohio 1982).Google Scholar
Id. at 595 (citations omitted).Google Scholar
Id. (citations omitted).Google Scholar
Id.Google Scholar