Ohio Hospital May Be Held Vicariously Liable For Negligent Act By Contract Nurse

An Ohio Court of Appeals held that a hospital may be vicariously liable for the alleged negligent acts of a nurse, despite the expiration of the statute of limitations for a direct action against the nurse. Van Doros v. Marymount Hosp., Inc., 2007-Ohio-1140, 2007 WL 764728 (Cuyahoga Cty. March 15, 2007).

In Van Doros, Kathy Van Doros, the executrix of the estate of Donald Miller, filed an action against the nurse, Thomas Madej, Marymount Hospital, and the nurse’s employer, Firstat Nursing Services. Van Doros alleged that the defendants negligently caused Miller’s death when Miller died in the hospital with a low blood oxygen level. Madej was directly employed by Firstat, but was working at Marymount because of a staffing agreement between Marymount and Firstat. The trial court dismissed the action based on the Ohio Supreme Court’s decision in Comer v. Risko, 106 Ohio St.3d 185 (2005). The Comer decision precluded a hospital from being held vicariously liable for medical malpractice if the attending physician could not be held primarily liable for malpractice. The physicians in Comer could not be held primarily liable because the statute of limitations had expired. Absent the physician’s primary liability, liability could not flow through the physicians to the hospital, the Ohio Supreme Court found.

In Van Doros, the Court of Appeals reversed and remanded the trial court’s decision, finding the Comer decision inapplicable because it addressed the liability of physicians, not nurses. The court distinguished physicians from nurses in the context of vicarious liability by reasoning that “physicians essentially serve as independent contractors, retaining primary control over their own actions and practices within a hospital setting,” while “[n]urses are subject to the control of the hospital, they are not free to choose their own patients, and patients are not free to choose their nurses.” The court found these distinctions held true whether or not the hospital directly employed the nurse, or, as in this case, the nurse worked at the hospital via a staffing contract with a third party.

Hospitals should take notice that the Comer decision protects hospitals when a physician is not primarily liable. However, a hospital can still be liable for the acts of its nurses even if an individual nurse is not primarily liable.