holding that a physician can be held liable for the negligence of a nurse who is not directly employed by the physician when all the requisite indices of a master-servant relationship exist
How later courts described this case
- holding that a physician can be held liable for the negligence of a nurse who is not directly employed by the physician when all the requisite indices of a master-servant relationship exist
- holding that, under the doctrine of respondeat superior, chief surgeon was liable for his assistant, a nurse-anesthetist
- “The central factor under Ohio law in determining whether an agency relationship exists is the right of control vested in the principal.”
- refusing to "breathe[ ] new life into that now prostrate doctrine"
Written by the judges who cited it.
The opinion
William B. Brown, J.,
concurring in the judgment only. The majority opinion creates an agency relationship in this case and thereby reaches the conclusion that the chief surgeon is vicariously liable for the negligence of a nurse anesthetist. In so reasoning, the majority overlooks R. C. 4731.35, which I believe to provide the proper basis for deciding this case.
R. C. 4731.35 provides: “Sections 4731.01 to 4731.47, inclusive, of the Revised Code shall not apply to or prohibit in any way the administration of an anaesthetic by a registered nurse under the direction of and in the immediate presence of a licensed physician, provided such nurse has taken a prescribed course in anaesthesia, at a hospital in good standing.” (Emphasis added.) The plain language of this section permits a nurse anesthetist to administer an anesthetic provided she does so only “under the direction” of a physician, thus placing control of the nurse anesthetist in the supervising physician. This section creates a necessary relationship between the physician and nurse anesthetist similar to master-servant, and provides a statutory basis for vicarious liability in the physician.
It was neither necessary or advisable to search beyond R. C. 4731.35 for a basis for vicarious liability in the surgeon. The rule as enunciated by the majority would not be restricted logically to the surgeon-nurse anesthetist relationship, but could be extended to anyone in the operating room over whom the chief surgeon has the right to control. This is nothing more than a resurrection of the “captain of this ship doctrine,” since realistically the chief surgeon controls all those who assist him in the operating room. Moreover, there is no reason why this case should be decided with such a broad sweep, when a narrower statutory basis exists. Since the General Assembly has chosen to legislate regarding the surgeon-nurse anesthetist relationship, it is incumbent upon us to apply the statute to this case, and, had we done so, we need not have ruled beyond the scope of that particular relationship.