| Who Is the Boss? Does the Nurse Work For the Hospital or the Physician? |
| Performance of Routine Medical Tasks v. Working Under the Direct and Personal Supervision of the Physician |
| Servant With Two Masters |
In many medical negligence cases, the issue arises whether the nurse, whose negligence caused the damage, was working for the hospital making it liable, or for the physician making him the captain of the ship with attendant responsibility. In this case, the court defines circumstances under which the mantle of responsibility passes from the hospital to the physician.
Facts : Diane Nelson's labor began with the onset of contractions at approximately 12:45 p.m. on November 20, 1982. The Nelsons left their home in Beulah, North Dakota for Minot approximately one hour later. Diane Nelson testified that during the drive to Minot the frequency of her contractions increased in a rapid manner, and that she began to experience severe abdominal pain and tightness in her stomach.
Upon arriving at Trinity at approximately 4 p.m. the Nelsons informed the nursing staff of what had occurred during the drive to Minot. Diane Nelson was then placed in a room. From the time she was placed in a room until shortly after 5 p.m. when an emergency Caesarean section was performed, Diane Nelson was under the supervision of Trinity's nurse, Susan Orr.
Diane Nelson's pregnancy was managed by Dr. Michael Vandall and Dr. David MacDonald. They had left standing orders that all their patients were to be placed on a continuous fetal heart-rate monitor. Such a monitor was not placed upon Diane Nelson until approximately 5:07 p.m. This occurred even though Dr. Vandall had discussed the use of such a monitor with Nurse Orr. Nurse Orr testified that she did not place a monitor upon Diane Nelson because she believed both of Trinity's monitors to be in use. Nurse Orr admitted that she did not look for a monitor. There was evidence offered that one of the monitors was not in use during that time. When a monitor was placed upon Diane Nelson it indicated that the child was in fetal distress and an emergency Caesarean section was then performed.
Kristen Nelson was born by the emergency Caesarean section. She was born severely brain-damaged. There was evidence that she will require extensive therapy and nursing-home care, that she will achieve an IQ of only 10 or 15, that she will always have to be fed through a stomach tube, and that she will never gain control over even her basic bodily functions. It was the theory of the plaintiffs that the brain damage was caused by a placental abruption—a separation of the umbilical cord from the uterine wall causing a loss of oxygen via the blood supply to the child. There was evidence that a placental abruption could have been diagnosed by a fetal heart-rate monitor or through the physical manifestations of Diane Nelson.
The original complaint included Doctors Vandall and MacDonald as defendants in this suit. However, an out-of-court settlement was reached between them and plaintiffs prior to trial. The case went to trial with Trinity as the sole defendant. The jury returned a verdict awarding the plaintiffs $7,080,454.
Trinity appealed. Trinity argues that the trial court erred in failing to give Trinity's requested jury instruction regarding the "captain-of-the-ship" doctrine. That instruction provided:
"You are instructed that if you find that the plaintiff was injured as a result of the negligence of a nurse, you must then determine whether the defendant hospital or physician is liable for that negligence.
"The Defendant hospital is liable for the negligence of a nurse if that person was acting as the agent and employee of the defendant hospital and within the course and scope of her employment at the time of the negligent act or omission complained of.
"The defendant physician is liable for the negligence of a nurse if that person is acting in the business of and under the direction of the physician at the time of the negligent act or omission complained of.
"A person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other."
The basis for this instruction lies in the fact that Dr. Vandall briefly examined Diane Nelson on two occasions between 4 p.m. and 5 p.m. of the day in question. Those examinations lasted between one and two minutes each. Subsequently the doctor issued several orders to Nurse Orr: that she continue to assess Diane Nelson, that she admit Diane Nelson to the hospital, that she begin an I.V. on Diane Nelson, that she give Diane Nelson certain medications for pain, and that she assess fetal heart tones.
Court Decision: In previously discussing the captain-of-the-ship doctrine we have stated that it is grounded on principles of agency and that: "The essential question is whether one is subject to the control of another not only to the work to be done but also the manner of performing it... "
We do not believe that the performance of routine medical tasks by a nurse pursuant to a doctor's orders presents a case wherein the doctor has the right to control the manner of performance to such an extent as to subject him to liability for the nurse's actions. Rather, a doctor's liability under the captain-of-the-ship doctrine should attach only where a nurse is under a doctor's direct control, such as in the operating room, or where a nurse is carrying out a doctor's orders which are technical in nature and require the doctor's supervision. An excellent discussion of this type of rule was provided by the Minnesota Supreme Court.
"The application of the (captain-of-the-ship doctrine] is free from difficulty where the actual control of the servant, or the right thereto, necessarily becomes vested in the surgeon when the nurse is assigned to assist him during the actual performance of an operation over which he must have exclusive direction or where the nurse is administering a prescribed treatment under the direct and personal supervision of the physician. Difficulty in the application of the rule arises primarily with respect to acts performed by hospital employees either before or after an operation, or performed in the course of administering medical treatment prescribed by a physician who is not present to give personal supervision.
"Whether the assignment by the hospital of one of its nurses to the care of a patient involves a surrender of control to attending physician so that the hospital ceases to be responsible for the negligent acts of the nurse can best be ascertained in the light of the recognized function of a modern hospital and the generally accepted limitations on a physician's time. A physician can spend only a short time at the bedside of each patient and he must therefore leave the actual fulfillment of his prescribed treatment to others less skilled. If this were not the accepted practice, no person of moderate means could afford to employ either a specialist or a general practitioner.
"A patient enters a hospital in reliance upon the reasonable assumption that its trained staff of nurses, its responsible supervision, and its special equipment will insure him a higher standard of care in administering to his needs as his physician may prescribe. If this assumption were not justifiable, the patient might just as well stay at home during his illness. Clearly, a hospital has a greater responsibility for the welfare of its patients than merely to maintain a pool of trained nurses from which the various, attending physicians may select their assistants."
Because of these circumstances the Minnesota Supreme Court concluded:
"... a hospital is liable for the negligence of its nurses in performing mere administrative or clerical acts, which acts, though constituting a part of a patient's prescribed medical treatment, do not require the application of the specialized technique or the understanding of a skilled physician or surgeon."
Under this rule:
"Routine acts of treatment which an attending physician may reasonably assume will be performed in his absence by nurses of a modern hospital as part of their usual and customary duties, and the execution of which does not require specialized medical knowledge, are merely administrative acts for which negligence in their performance is imputable to the hospital."
This type of rule recognizes that there are certain situations where a doctor's control and supervision of a nurse are so great that he should be made liable for the nurse's actions, e.g., in the operating room. Yet it recognizes that in most instances where a nurse acts—even under a doctor's orders—the nurse acts independently of the doctor. As one Illinois court has stated:
"A nurse is still subject to the rules and regulations of the hospital, and the doctor may not gainsay them. She may be discharged by the hospital but not by the doctor. The hospital, not the doctor, furnishes the equipment that the nurse uses, and she is paid by the hospital. We conclude, therefore, that the employees of the hospital assisting a surgeon remain the employees of the hospital even though the surgeon retains some degree of control over them.
"We do believe, however, that analogous authority supports the general rule that a doctor may be held liable for the negligence of a hospital employee who is subject to the doctor's control or supervision."
In this case Trinity offered no evidence that Nurse Orr was under Dr. Vandall's direct control or supervision, only that she performed routine tasks pursuant to his orders. Thus the trial court properly refused to give the requested jury instruction on the captain-of-the-ship doctrine. As we have stated previously, "A refusal of an instruction which is inapplicable under the evidence is not error."
Nelson v. Trinity Medical Center, 419 N.W. 2d 886
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