Article by I. Trotter Hardy, Jr.
A hospitalized patient injured by the negligence of a nurse can bring suit against the hospital because the nurse is a hospital employee. A hospitalized patient injured by the negligence of a private physician cannot bring suit against the hospital because the physician is not a hospital employee. Can a patient sue the hospital when a nurse is negligent, if at all, only for not speaking up about a private physician's negligence? Courts have given this question a variety of answers over the last fifty years, few of them satisfactory, and some of them simply wrong. The question is vexing precisely because it arises at the intersection of two separate lines of cases against hospitals, both based on the theory of respondeat superior.
Simple cases of nursing negligence, without the complication of a physician's mistake, form the first line; they rarely pose problems for courts today. With a few exceptions, all jurisdictions allow suits against hospitals based on respondeat superior in this situation, as long as governmental and charitable immunities are not in issue. Examples of nursing negligence for which the employing hospital can be held liable include not checking a patient's transfusion needle often enough, improperly moving a patient so that a recent incision is re-opened, and using the wrong type of hypodermic needle for an injection.
For years, however, in a second line of cases courts resolutely denied the liability of hospitals on a respondeat superior theory when a private physician negligently treated a patient in the hospital. The prevailing judicial attitude was that hospitals only undertake to provide a facility for the convenience of physicians and patients. Because they do not treat or attempt to cure patients, hospitals do not directly owe a medical duty to patients. Judges frequently observed, even as late as 1967, that hospitals are merely specialized hotels that cannot provide medical care, and that a hospital can neither control nor be responsible for the acts of physicians because they are independent contractors. The reasoning in these cases almost always begged the question of hospital liability: hospitals were not liable because they owed no medical duty to patients. They owed no duty because courts were unwilling to hold that they did owe a duty. Whatever the soundness of this reasoning, a long line of cases declared firmly that hospitals are not liable for the negligence of private physicians.
These two firmly entrenched doctrines distinguishing nurses' and physicians' negligence collide in the factual situation at issue in this Article. This situation, which for convenience I call the speaking up case, presents a physician negligently treating a patient, and a nurse or other hospital employee observing the negligent treatment. The injured patient sues the hospital on the grounds that its employee should have prevented or corrected this treatment.
Several analytical approaches to this situation are possible. One is to view a case as falling under the second line of cases, those that follow a general rule that hospitals are not liable for physicians' negligence. Courts taking this approach simply conclude that the hospital is not liable, without further analysis of law or policy—and without further discussion in this Article. Other courts follow the first line of cases, positing that nurses have a duty to speak up under certain circumstances. If a nurse fails to do so, the hospital is liable under the principles of respondeat superior. One thesis of this Article is that respondeat superior principles are appropriate to speaking up cases, but courts applying them have developed a needless and confusing array of particularized duties to impose on nurses. These duties are too ambiguous to be useful in guiding decisions about either liability or nursing behavior.
Recent judicial and academic writing, particularly since the 1965 case of Darling v. Charleston Community Memorial Hospital, has suggested a third approach to the analysis of speaking up cases: hospitals can be liable for physicians' errors because of corporate negligence, the violation of a direct medical, as opposed to nursing, responsibility to patients. A second thesis of this Article is that corporate negligence, however useful in other contexts, is largely inapposite to the speaking up situation: it compels an analysis requiring fault by the hospital as an entity when none is present. Because the corporate negligence approach to speaking up cases seems to be both seriously flawed and growing in significance, the Article discusses it first and in some detail. The Article next discusses cases relying on the respondeat superior theory, and applies a cost-benefit analysis to speaking up cases based on the Learned Hand formula for negligence. The Article concludes that courts should use the respondeat superior theory, but should not define duties at all; instead, courts should use expert testimony to establish a standard of care. The standard would show whether in a given situation a reasonable, prudent nurse would have spoken up about a physician's negligence. Simple though this conclusion may appear, most courts have not been able to reach it.
About the Author
I. Trotter Hardy, Jr. Professor of Law, Emeritus, Marshall-Wythe School of Law, College of William and Mary; B.A., University of Virginia (1968); M.S., American University (1974); J.D., Duke University (1981).
Citation
61 Tul. L. Rev. 85 (1986)