MEDICAL NEGLIGENCE – Hooks left in scalp during brain surgery not negligence per se: Gregory B. Nazar, MD, et al. v. Sheila Branham, Executrix of the Estate of Roe Branham (SC 4/23/2009)

Gregory B. Nazar, MD, et al. v. Sheila Branham, Executrix of the Estate of Roe Branham
2004-SC-001015-DG April 23, 2009
2005-SC-000834-DG April 23, 2009
Opinion by Special Justice Mando; Chief Justice Minton and Justice Schroder not sitting.

During surgery to remove a brain tumor, a small metal “Durahook” was left in the patient’s scalp, necessitating a second surgery months later to remove the item. The patient brought a medical malpractice suit against the surgeon. The jury returned a defense verdict after the trial court refused to instruct the jury on the patient’s theory that the surgeon was vicariously liable for the nurses’ failure to remove the item. The Court of Appeals reversed, holding that under Laws v. Harter, leaving a foreign object inside a patient is negligence per se, and that the patient should have been awarded summary judgment on the issue of liability.

The Supreme Court reversed the Court of Appeals and overruled Laws, holding that the res ipsa loquitur standard was more appropriate than the stringent negligence per se standard for foreign object cases because it allows juries to determine the individual healthcare professional’s level of liability in a situation where any number of people may be responsible for leaving the object inside the patient. Having determined the issue of the surgeon’s personal liability was properly sent to the jury, the Court then took up the issue of the surgeon’s vicarious liability. The Court held that in order for vicarious liability to exist, it must be established that the nurses were the surgeon’s agents. The Court found the patient had presented no evidence of an agency relationship and noted the surgeon’s evidence showing that he did not control the nurses’ training, terms of employment or details of their work. As such, the Court held that the trial court was correct in its refusal to instruct the jury on vicarious liability. Justice Venters (joined by Justice Cunningham and Justice Noble) concurred but disagreed with the majority’s conclusion that the nurses were not agents of the surgeon. The minority wrote that because the surgeon did not order or instruct nursing staff in how to assist him did not necessarily negate the supervisor/agent relationship but might instead indicate that the surgeon was deficient in his supervision of the nurses.

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