Nursing in Florida: the path to professional liability.

• Author: Makar, Marjorie C.

Gone are the days when nurses were considered mere "hand-servants" of physicians.[1] Today, the professional nurse exercises a significant amount of responsibility for a patient's well-being. Contemporary nurses can be found managing the care of gravely ill infants in state-of-the-art neonatal intensive care units, independently ensuring the health and safety of workers in industrial facilities, and providing primary emergency response to consumers in computerized poison control centers.[2] Because of the greater scope of their responsibilities,[3] as well as the unique role they play in the health care delivery system,[4] professional nurses are being individually sued with increasing frequency.

Malpractice plaintiffs have typically relied upon the vicarious liability doctrines of respondeat superior or borrowed servant/captain-of-the-ship to obtain a recovery for the negligent acts of nurses. Although these theories remain popular, a nurse today may find herself[5] named and sued as an individual defendant. This article discusses how professional nursing liability theories have evolved and been applied in the case law. The article also reviews Florida case law,[6] discusses common fact patterns in nursing malpractice cases and, in some instances, suggests ways in which the malpractice could have been prevented.

Theories of Liability

Historically, hospitals were not held liable for the acts of their employees.[7] This protection developed from the doctrine of charitable immunity, which basically stated that a charitable organization (such as a hospital) could not be sued. In Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914),Justice Cardozo stated that hospitals were "simply a physical place consisting of bricks, mortar, beds and equipment."[8] Because the hospital itself was not considered the health care provider, courts did not hold it liable for the negligent acts of others who provide patient care within the facility. Physicians and nurses were deemed independent contractors who practiced their skills in the hospital without supervision or control by the hospital itself.[9] Over time, the nature of the hospital changed,[10] and today it is well settled that a hospital can be held vicariously liable for the negligent conduct of its nurse-employees committed within the scope of their employment.[11] The basis of liability is the employment relationship, and legal actions are based on the doctrine of respondeat superior.[12]

Respondeat superior is a basic rule of agency[13] "whereby an employer, master, [14] or principal is liable for the negligent acts of his employees, servants,[15] or agents when those acts arise in the course and scope of their employment, service, or agency."[16] Pursuant to this doctrine, a hospital or physician "is responsible for an injury done to the patient through the want of proper skill and care in his assistant, apprentice, agent, or employee."[17] Thus, for example, a nurse employed by a hospital or physician who negligently injures a patient while acting within the scope of the nurse's duties might be liable under this theory.[18] A prospective plaintiff would bring suit against the hospital or physician alleging malpractice on the part of the hospital or the physician's employee. Once the elements of a malpractice cause of action were proven, any resulting judgment would be collected solely from the hospital or physician.[19] While this doctrine is relatively easy to apply when only one employer is involved, i.e., a hospital, it becomes more difficult when more than one potential employer exists.[20] The borrowed servant rule was therefore developed to assign liability for employee negligence to the proper employer.[21]

The borrowed servant doctrine developed under the premise that "[a] servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services. He may become the other's servant as to some acts and not others."[22] In applying this rule, courts focus their inquiry on which master was being served at the time of the specific act that caused the alleged injury.[23] The employer that is found to have been the master at the time of the act that caused the injury is vicariously liable, whereas the other employer is relieved of liability.[24] Thus, for example, where a patient complains of malpractice after an operating room surgeon administers an improper solution during surgery which causes injury to the patient, the nurse who prepared the solution might be considered a borrowed servant of the operating room surgeon, under whose direct supervision the nurse was working.[25]

The captain-of-the-ship doctrine[26] is an extension of the borrowed servant rule that has been applied in operating room cases.[27] This doctrine presumes a master-servant relationship merely from the presence of the surgeon and other operating personnel in the operating room.[28] Once the surgeon enters the ship--the operating room--the surgeon has the complete right of control over the other personnel in the operating room.[29] This doctrine has lost favor in recent years,[30] primarily because fewer hospitals are protected by charitable immunity and can now be held liable through the acts of its employees [31]

When nurses fail to meet standards of care in a hospital setting due to circumstances totally out of their control, the proper cause of action would be against the hospital for corporate negligence. This doctrine, as it applies to hospitals, was first adopted in 1965 in the Illinois case, Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965), cert. denied, 383 U.S. 946 (1966). In 1989, the doctrine was recognized by the Florida Supreme Court in Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989). The Insinga decision placed certain nondelegable duties regarding patient care directly on the hospital.[32] The Florida Supreme Court held that a hospital owes an independent duty to its patients to select and maintain competent medical staff to treat them.[33] Failure to meet this standard may subject the hospital to liability.[34] The corporate negligence doctrine has been extended to impose upon hospitals an affirmative nondelegable duty to provide nurses with staffing, equipment, and other support necessary to meet minimum prevailing standards of practice.[35] Thus, for example, if a hospital's policy allowed chronic understaffing of an intensive care unit, and a nurse could not meet the standard of care because of the understaffing, the hospital could be held liable for corporate negligence.

In today's competitive health care environment and with the implementation of maximum cost containment measures, hospitals must walk a fine line to reconcile the competing factors of decreasing the cost of health care while maintaining the standard of care. When a hospital's cost containment efforts significantly and adversely affect the standard and quality of patient care, the hospital could be subject to increased litigation under the corporate negligence doctrine for harm shown to have proximately resulted.

As discussed, when a nurse acts appropriately under the direction and orders of a physician in matters involving medical professional skill and judgment, the nurse is absolved from liability for these acts. Similarly, where a nurse adequately and properly performs ministerial acts pursuant to her employer hospital's policies--where those policies meet the standard of care for hospitals--she is not...