AAOS Bulletin - June, 2006

Medical-legal terms defined: Respondeat Superior

By William Davenport, JD

Beverly B., a Rhode Island resident and retired schoolteacher, was involved in an auto accident and treated in a nearby Massachusetts hospital. When she recovered, she claimed that 27 holes were drilled in her head and filled with radioactive isotopes while she was hospitalized. She also claimed that the hospital stole her Social Security number and part of her brain, and sent it to Alabama for research. Her proof? Whenever she closed her eyes and rolled them back, she could see the 27 bright spots of the radioactive isotope. She was also receiving messages from the part of her brain in Alabama, and part of her Social Security number was listed on her hospital identification.

Understandably, nothing in the medical record indicated that any of this had happened, so she could not sue any specific individual. Instead, she filed a lawsuit in the U.S. District Court in Massachusetts based on the doctrine of respondeat superior.

Respondeat superior, or “let the master answer,” has been in existence since the 17th century. Under this doctrine, a master is liable for injury or harm to third persons caused by his or her servant’s negligent physical acts and other injurious conduct committed within the scope of his or her employment. The relationship between master and servant has to exist at the time the third party was injured for the doctrine of respondeat superior to apply. It implies that master may be liable for the acts of the servant, even if the master is without fault.

Respondeat superior is still applied, based on the principle that it would be unjust to permit an employer to gain from the intelligent cooperation of others without being responsible for the mistakes, errors of judgment and frailties of those working under the employer’s direction and for employer’s benefit. It does not apply when an employee is acting as an individual outside the scope of his or her employment.

Implications for health care

Respondeat superior has serious implications for those in health care. In most states, for example, a patient who alleges that he or she was injured by the negligence of a physician employee of an incorporated medical practice group can sue and win a case against the incorporated group on the theory of respondeat superior. The plaintiff must prove that, at the time of the alleged negligence, the physician was an employee of the incorporated group and the negligent treatment occurred within the scope of the physician’s employment.

Respondeat superior also applies to hospitals, which can be held liable for the negligence of the nurses, technicians, physicians and other health-care workers it employs. It allows a plaintiff to file a lawsuit without having to prove that a specific employee was negligent, as long as the plaintiff can show that some employee of the hospital was negligent.

Respondeat superior may be helpful to a physician with insufficient insurance or no insurance, if the physician is the inferior for whom the superior has to respond. I recently defended an emergency room (ER) physician who was sued for failure to diagnose appendicitis. The patient was a previously healthy 23-year-old female, first seen in the emergency department with a three-day history of right-sided abdominal pain. The ER physician ordered an ultrasound, talked to the radiologist and specifically asked about the possibility of appendicitis. The radiologist said that there was no evidence of appendicitis, but there was evidence of an ovarian cyst. Additional testing was conducted. A repeat white blood count was in the normal range and the patient’s symptoms improved. The ER physician advised the patient to followup with her ob-gyn and to return to the ER if there were any problems. The patient was examined by her ob-gyn the next day. Nine days later, the patient returned to the emergency department and was diagnosed with appendicitis.

The patient later sued the ER physician but not the radiologist or her ob-gyn. Under most circumstances, this case would go to trial with a high probability of a defense verdict. But the ER physician’s insurer had declared bankruptcy, leaving the physician without coverage. When the plaintiff’s lawyer learned that the ER physician was without insurance, he added the physician’s employer as a defendant under the doctrine of respondeat superior. With a corporation able to pay a verdict if the case were tried and lost, we went to trial. The verdict was in favor of the ER physician.

Chasing the unknown

Plaintiffs often sue hospitals under the doctrine of respondeat superior when something goes wrong during a procedure but they don’t know which hospital employee caused the injury. This was the case for Beverly B., who also was pro se, meaning she acted as her own lawyer.

She had no expert witness and failed to prevail at the required Massachusetts malpractice tribunal hearing, but she filed a $6,000 cash bond to continue her case. When the case was eventually called for trial, the judge was able to convince Beverly B. that she would lose and would forfeit her $6,000.

Beverly initially agreed to dismiss the case but later changed her mind and tried to remove the dismissal. She claimed that she had obtained her medical records from the hospital and they contained libelous statements about her. She said that her X-ray report stated that they were taken upon expiration but she was not dead. The judge did not remove the dismissal.

At this point, you may think that the best Latin to describe what has been written about respondeat superior is a poem by the Roman poet, Catullus, titled Vis Stercaris.

William Davenport, JD, managing partner of Bloom & Buell, is a Boston attorney who has been defending health-care providers for more than 25 years.

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