Title:Nurses'

personal liability vs. employer's vicarious liability

Author(s):Katherine Kaby Anselmi Source:MedSurg Nursing. 21.1 (January-February 2012): p45. Document Type:Article Full Text:
As a growing number of nurses become employees f a group practice, hospital health maintenance organization (HMO), retail clinic, or other type of health care system, increasing numbers of third-party employers will be held responsible for the actions of their employees. In this article, the personal liability of an employee, such as a nurse, will be distinguished from that of the employer, such as a hospital entity or physician. Included will be a discussion of liability, three types of vicarious liability, and the application of liability to the relationship between the nurse and his or her employer or supervisor.

Legal Terms
Liability refers to the responsibility of one person or entity to another person or entity. Black's Law Dictionary (Garner, 2009) defines liability as, "The quality or state of being legally obligated or accountable; legalresponsibility to another or to society, enforceable by civil remedy or criminal punishment" (p. 926). Liability is personal in that an individual is responsible for his or her actions. This doctrine is the basis for medical malpractice claims (Prosser, Wade, Schwartz, Kelly, & Partlett, 2010). With strict liability there is responsibility for damage or harm without having to prove fault (Garner, 2009). A classic example of strict liability is an injury by a wild animal that is kept as a pet, such as a boa constrictor or tame lion. Regardless of how well trained or behaved, wild animals are known to revert to their wild tendencies. Thus the owner is held strictly liable for any injury or harm caused by his or her wild animal, regardless of intent or fault. Another example is the use of explosives or fireworks in a populated area. Even though the owner/operator of the explosives or fireworks takes every safety precaution, he or she is held strictly liable for any injuries or damage to property because explosives are inherently dangerous. Strict liability also applies to a hospital using explosive gases such as oxygen. Finally, a hospital that hires a nurse, who is later found to be without a license to practice, may be held strictly liable for negligent hiring. Vicarious liability refers to the responsibility or accountability of one person or entity for the actions of another. Black's Law Dictionary (Garner, 2009) defines vicarious liability as, "Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties" (p. 927). For example, a nursemanager directed a staff nurse to give discharge instructions to a patient going home after a week on the medical-surgical unit. The staffnurse forgot to bring all the patient teaching handouts, in particular the sheet explaining the procedure for replacing the insulin pump cartridge on the patient's new insulin pump. The staff nurse told the patient the home health nurse and medical supply company representative would make a home visit and explain further details. The patient was discharged to home but it was several days before the home visits occurred, leaving the patient confused about how to work with the insulin pump and replace the cartridge. Rather than make a mistake, the patient decided not to try to adjust the pump and ultimately was readmitted to the hospital for severe hyperglycemia. The patient brought suit against the staff nurse for failure to follow the hospital discharge protocol, and against the nurse manager for vicarious liability in failure to supervise the staff nurse properly.

In the legal doctrine of vicarious liability, the law permits the injured party (plaintiff) to impute the wrongdoing (tortious act) of one individual (the tortfeasor) upon another because of the legal relationship that exists between them, known as agency. The most common types of relationships that invoke vicarious liability are between employer and employee; between employer and independent contractor; and between persons involved in a joint enterprise. In addition, negligent entrustment can occur when one party entrusts another party to perform some act when it is known the second party does not know how to do so, such as allowing an unlicensed pre-adolescent to drive on a highway. The legalchallenge upon each of these relationships has resulted in a plethora of lawsuits through which plaintiffs have asserted an apparent agency relationship exists while the defendant argues there is no agency relationship in order to avoid culpability, blame, and a judgment (Furrow, Greaney, Johnson, Jost, & Schwartz, 2008; Johnson, 2011). The four types of relationships invoking vicarious liability will be explained further. An employer/employee relationship exists when the employer is in the position to directly control or supervise another person's job or work. Parameters define the scope of supervision, to include any activity that is in the furtherance of the employer's business interests. For example, a staff nurse directs housekeeping staff to empty the red sharps container because it is overfilled. While the staff member is taking the container to the utility room, a small scalpel falls from the container and a patient steps on it; this requires an emergency department visit, sutures to the wound, an incident report, and investigation. The patient's family sues the hospital and the staff nurse for negligence. Although the staff nurse was not the housekeeper's assigned supervisor, the staff nurse was in the position to supervise the work of the housekeeper and used poor judgment in directing the housekeeper to empty the sharps container. This employer/employee relationship that invokes vicarious liability also is called respondeat superior, meaning "let the superior answer" (Winrow & Winrow, 2008). In the legal doctrine of respondeat superior, the employer is called the principal and the employee the agent of the principal. The agent of the principal has the authority to act on behalf of the principal, creating an agency relationship. Respondeat superior permits a plaintiff to recover his or her loss from the tortfeasor's (wrongdoer's) employer. Moreover, employers are apt to have deeper pockets and mistakes are regarded as one of the expenses of doing business. Once respondeat superior is established, vicarious liability is the legal method for a plaintiff to obtain relief when a tort has occurred (Prosser et al., 2010). In the most distant legal relationship, the relationship between employer and independent contractor requires no supervision of the work, as compared to that of employer and employee. Generally, independent contractors are responsible for their own actions and any wrongdoing cannot be imputed to the entity that hired them (Prosser et al., 2010). An example of an independent contractor would be a home health agency nurse performing a home visit. Although the home health agency staff must have a physician's order to provide care, the way in which the visit and care are performed is not under the direct supervision of the physician; thus the agency is an independent contractor. In fact, one argument used in defense of respondeat superior is the employee acted on his or her own behalf beyond or outside the scope of employment or job description; however, this argument has become murky within the business enterprise of health systems (Hamilton, 2010):
By holding itself out as providing all manner of medical care to the public, the modern hospital has blurred the line between simply being a building where physicians practice medicine and being the entity providing that actual medical care. (p. 257)

Some hospitals with HMOs that hire independent contractor physicians have been held vicariously liable for negligence under agency law because patients were led to believe the physicians were part of the health care system and presented as such (Furrow et al., 2008). In independent contractor arrangements, there is no confusion that the employer has any control over the way in which the job is performed; in other words, the independent contractor is his or her own manager without supervision by the employer. Exceptions exist to the rule that an employer generally is not vicariously liable for the torts of an independent contractor. Exceptions occur when there is a non-delegable duty of the employer with a certain expectation from the public that the duty cannot be delegated. For example, the independent contractor actually may be an employee and under direct supervision of the employer, or there may be an expectation to keep the premises safe for the public. Other exceptions occur when there is negligence in the hiring of the independent contractor and/or a job is inherently dangerous. The leader of the cardiac arrest code team cannot delegate his or her duties, for example, but must follow the established protocol to include counting medications and co-signing the code record. A third type of legal relationship subject to vicarious liability is negligent entrustment or supervision. An example of negligent entrustment can occur in a teaching hospital where attending physicians may supervise medical students, advanced practice nurses, or residents. An injured plaintiff can claim the injury is a direct result of negligent supervision by the attending physician (Johnson, 2011). Physicians or advanced practice nurses can be held liable for negligently supervising their staff in the primary care setting as well. Barclay and Williams (2011) encouraged health care providers in the community to be sure persons performing clinical work are current in their practice and trained adequately, with regular assessment of continued competence. Thus the staff nurse, who has not maintained current certification in cardiopulmonary resuscitation and does not know what to do when a patient experiences arrest, can shift blame to the supervisor who never validated active certification. The fourth and final type of legal relationship that can give rise to vicarious liability is that of a joint enterprise between two or more parties, also referred to as a joint venture. The joint enterprise generally is limited to a business purpose and may be limited to a certain amount of time, such as for the duration of the venture. Unless the joint enterprise takes action to protect the personal assets of its individuals by forming a limited liability partnership or other protective business structure, the joint enterprise members will be culpable and vicariously liable for the wrongdoing of those involved in furthering the business of the enterprise. For example, two nurses decide to start a home health agency and hire three staff nurses to perform the home visits. In such instances, the partners (two nurse owners of the agency) will have joint and several liability. The joint liability may be apportioned (divided) among the partners or is several, meaning it is separate (Johnson, 2011). Under enterprise liability, health care entities rather than the individual health care providers are culpable (MacCourt & Bernstein, 2009). Relationship Between Nurse and Employer The nurse and employer entity have a professional business relationship. As explained previously, in the majority of instances, the business entity that hires the nurse also is culpable for the negligent acts and omissions of the nurse employee, invoking vicarious liability. When there is complete independence of practice, with no public confusion as to the independence between the parties, and no control or supervision of the hired independent contractor by the employer, the employer will have a strong argument in defense of a vicarious liability claim (Prosser et al., 2010).

A frequent question about legal issues from practicing nurses at conferences or lectures is, "Should I carry my own malpractice insurance even though I am covered under my employer's insurance?" The answer is, "Never leave home without it!" All nurses should carry their own malpractice insurance because there is a difference and separation between the nurse's liability for a wrongdoing and his or her employer's liability. The nurse uses his or her own judgment within the context of the scope and standards of practice (American Nurses Association, 2010) and the business relationship with the employer. The insurer of the employer health care institution may have reason to focus on itself, rather than fully defending the nurse. Thus the nurse will need to have his or her own insurer, who will pay for the nurse's defense. Health care agencies or medical practices that employ advanced practice nurses must have policies to establish the conduct of business and professional practice. When those policies include the supervision ofnurse practitioners and other advanced practice nurses, even thoughnurse practitioners are mostly independent and not supervised, the agency can expect to be held liable (Buppert, 2008). Moreover, although regulations and legislation are jurisdictionspecific, many states are moving toward mandatory requirement for nurses to carry malpractice insurance (Booth, 2007). The Pennsylvania State Board of Nursing, for example, includes the requirement for malpractice insurance in its application for licensure: "A CRNP practicing in this Commonwealth shall maintain a level of professional liability coverage as required for a nonparticipating health care provider under the act of March 20, 2002 (P.L.154, No. 13) known as the 'Medical Care Availability and Reduction or Error (Mcare) Act...'" (Professional Nursing Law Section 8.7) (Pennsylvania State Board of Nursing, 2011). Other jurisdictions have shifted their laws in the interest of tort reform and legislated that vicarious liability is no longer permitted because all health care providers in those particular states carry their own malpractice insurance (Booth, 2007). Grant and Ballard (2011) reaffirmed iatrogenic events as a leading cause in the United States of morbidity and mortality, which can be prevented with measures such as adherence to standards of care. Mello and Studdert (2008) found individual, system, and patient-related factors can contribute to harmful errors that invoke vicarious and corporate liability, the most frequent being error in judgment. Taken together, these factors make it possible for the nurse employee and health system employer to become adverse parties if there is disagreement about responsibility and a shift of blame "...because a lawsuit fractures collegial alliances" (Buppert, 2008, p. 263). Hence, a nurse's liability for negligent acts during the course of providing patient care is the argument for obtaining malpractice insurance. Buppert (2008) advised obtaining insurance that will pay for the defense of an occurrence or incident during the insurance coverage period even if the claim is filed after the nurse is no longer insured. Conclusion Although there are models to realign tort law that shift culpability from the individual provider to the institution (MacCourt & Bernstein, 2009; Mello & Studdert, 2008), vicarious liability and respondeate superior continue to be named in malpractice lawsuits. These are compelling reasons for physicians and state medical boards to distance themselves from overseeing, supervising, and controlling the practice of advanced practice nurses such as nurse practitioners. Battaglia (2010) argued physician culpability is diminished as nurse practitioners' practice settings shift from doctors' offices and doctors' billing to settings wherenurse practitioners are not dependent upon physicians to provide supplies and instruments for use in the delivery of advanced practice care. Until such time that the nurse and advanced practice nurse are not vulnerable to physicians and health care systems, both may be liable to the patient and each other if something goes wrong. In any event, it is of utmost

importance for an advanced practice nurse to review a collaborative agreement or contract with an attorney to understand his or her legal right fully. The nurse on a medical-surgical unit does not have a collaborative agreement with a physician or may not even have a written contractual agreement with the hospital employer. In such a case, there is an implied contract. The nurse is expected to have knowledge of and practice according to the hospital formulary or policy and procedure manual and the states' laws and regulations governing the practice of nursing. In this article a brief review of the areas of liability confronting nurses and their employers was offered. It was for educational purposes only, and not intended as legal or any other advice. Nurses, employers, or other readers should consult with a licensed attorney when advice is needed. REFERENCES American Nurses Association. (2010). Nursing: Scope and standards of practice. Silver Spring, MD: Author. Barclay, I., & Williams, S. (2011). Medico-legal vicarious liability and GP's staff. GP, 50-51. Retrieved from http://www.gponline.com/ Medeconomics/article/1072101/medico-legalvicarious-liability-gps-staff Battaglia, L.E. (2010). Supervision and collaboration requirements: The vulnerability of nurse practitioners and its implications for retail health. Washington University Law Review, 87, 1127-1161. Booth, J.W. (2007). An update on vicarious liability for certified nurse-midwives/certified midwives. Journal of Midwifery & Women's Health, 52(2), 153-157. Buppert, C. (2008). Nurse practitioner's business practice and legalguide (3rd ed.). Sudbury, MA: Jones and Bartlett. Furrow, B.R., Greaney, T.L., Johnson, S.H., Jost, T.S., & Schwartz, T.L. (2008). Liability and quality issues in health care (6th ed.). St. Paul, MN: Thomson/West. Garner, B.A. (Ed.). (2009) Black's law dictionary (9th ed.). St. Paul, MN: West Group. Grant, P.D., & Ballard, D.C. (2011). Law for nurse leaders. New York, NY: Springer. Hamilton, H. (2010). Boren ex. rel. Boren v. Weeks and the Extension of Apparent Agency Liability to Tennessee Hospitals. Temple Journal of Science, Technology & Environmental Law, 29, 257-304. Johnson, L.J. (2011, February 10).You can delegate work, but you can't delegate liability. Medical Economics. Retrieved from http:// www.modernmedicine.com/modernmedicine/article/articleDetail.js p?id=709383 MacCourt, D., & Bernstein, J. (2009). Medical error reduction and tort reform through private, contractually-based quality medicine societies. American Journal of Law & Medicine, 35, 505559. Mello, M.M., & Studdert, D.M. (2008). Deconstructing negligence: The role of individual and system factors in causing medical Injuries. Georgetown Law Journal, 96, 599-623. Pennsylvania State Board of Nursing. (2011). General instructions for certified registered nurse practitioners. Retrieved from http ://www. dos. state, pa. us/nurse

Prosser, W.L., Wade, J.W., Schwartz, V.E., Kelly, K., & Partlett, D.F. (2010). Torts, cases, and materials (10th ed.). New York, NY: Foundation Press. Winrow, B, & Winrow, A.R. (2008). Personal protection: Vicarious liability as applied to the various business structures. Journal of Midwifery and Women's Health, 53(2), 146-149. Katherine Kaby Anselmi, JD, PhD, FNP-BC, WHNP-BC, is Associate Clinical Professor and Assistant Dean of MSN Advanced Role and RN/BSN Programs, College of Nursing and Health Professions, Drexel University, Philadelphia, PA. During her hiatus from academia, Dr. Anselmi practiced law in the areas of health effects, torts, and domestic violence law. Anselmi, Katherine Kaby
Source Citation Anselmi, Katherine Kaby. "Nurses' personal liability vs. employer's vicarious liability." MedSurg Nursing Jan.-Feb. 2012: 45+. Academic OneFile. Web. 5 Mar. 2012. Document URL http://go.galegroup.com/ps/i.do?id=GALE%7CA280558228&v=2.1&u=lyceumph&it=r&p=AONE&sw= w

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Title:Rubber

gloves redux

Author(s):S. Robert Lathan Source:Baylor University Medical Center Proceedings. 24.4 (Oct. 2011): p324. Document Type:Report Full Text:
In 2010, I wrote an article for the Proceedings entitled "Caroline Hampton Halsted: the first to use rubber gloves in the operatingroom." Since then, some additional information has come to light. When The Johns Hopkins Hospital opened in 1889, Caroline moved to Baltimore and was eventually appointed chief nurse of the operatingroom by Dr. William Halsted, soon to become the first surgeon in chief at Johns Hopkins. The specialty of operating room nursing emerged in 1889 at Hopkins, partly the result of an attempt to pacify two feuding nurses. Isabel Hampton (no relation to Caroline), a Canadian and graduate of Bellevue Hospital nursing school, came to Baltimore from Cook County Hospital and was selected over Caroline and two other candidates for the position of superintendent (or director) of hospital nursing; she was also charged with organizing a school of nursing. Caroline was appointed initially as head nurse of the surgical division. There is some disagreement about what happened between them. One report stated that "an intense animosity existed because Caroline, a Southerner, disliked taking orders from Isabel, a Canadian." Also, Caroline herself had hoped to get the job of nursing superintendent. But Halsted came to the rescue and appointed Caroline supervisor of theoperating room to relieve some of the tension. Caroline became Dr. Halsted's scrub nurse but soon developed a severe contact dermatitis of her hands, which led to Halsted's request of the Goodyear Rubber Company to make for her special rubber gloves, which were successful. Halsted and Caroline were quickly engaged and later married in 1890. Halsted did not invent rubber gloves. Actually, 132 years previously in 1767, obstetric gloves made from sheep intestines were used for vaginal exams and deliveries by a German physician, J. J. Walbaum. Also, in the 1840s, gloves were used for postmortem exams, and Dr. William Welch at Hopkins may have used gloves for autopsies. In 1844, Charles Goodyear patented his discovery of "vulcanization" of rubber, allowing surgical gloves to become lighter but also stronger and more flexible. At Johns Hopkins after 1890, Dr. Halsted didn't start wearing gloves himself at first. They were used by nurses and assistants but rarely by the doctors (except for open bone and joint operations). Halsted's paper, "The treatment of wounds," was published in Johns Hopkins Hospital Reports in 1891 and mentioned, for the first time, the use of "thin rubber gloves by the assistant who passes the instruments." Dr. Joseph Bloodgood, Halsted's protege who came to Hopkins in 1892, was later the director of surgical pathology and started using gloves himself during surgery in 1893. He said, "What's sauce for the goose is sauce for the gander." Bloodgood later published a report of over 450 hernia operations with a near 100% drop in the infection rate by using gloves. Halsted was convinced and later asked, "Why was I so blind not to have perceived the necessity for wearing them all the time?"

Dr. Hunter Robb, a gynecologist at Johns Hopkins, was another Halsted associate who pioneered the use of rubber gloves and published a book, Aseptic Surgical Technique, in 1894. He married Isabel Hampton, the chief nurse who clashed with Caroline, and they moved to Western Reserve University. By the turn of the century, there was a near-uniform adoption of rubber gloves as an operating room accessory. Since then, gloves have evolved and become more flexible and better fitting. In 2004, Barza from Tufts University School of Medicine described a new type of disposable glove that emits chlorine dioxide when exposed to light or moisture and kills potentially harmful microbes. Glove use has skyrocketed. Some health care workers go through dozens of pairs in a single day. There are sterile and nonsterile gloves made of latex, vinyl, nitrile, and other synthetics. Gloves may be powdered or powder free. The advent of AIDS has revolutionized the way hospitals treat infection control. The last century has seen a 360-degree turn in the reason why gloves are used in the operating room: 1. Initially to protect staff from corrosive substances and from infections such as syphilis 2. Later to also protect patients from contamination by the staff, thus reducing operative and wound infections 3. Finally to also protect staff from bloodborne or needle-stick infections In 2008, Johns Hopkins and other hospitals abandoned latex gloves because of possible allergic reactions. There is apparently a 10% incidence of latex allergy in the general population. Lathan SR. Caroline Hampton Halsted: the first to use rubber gloves in the operating room. Proc (Bayl UnivMed Cent) 2010;23(4):389-392. Johns E, Pfefferkorn B. Johns Hopkins Hospital School of Nursing, 1889-1949. Baltimore: Johns Hopkins University Press, 1954. Bloodgood JC. Operations on 459 cases of hernia in The Johns Hopkins Hospital from June 1889 to January 1899. Johns Hopkins Hosp Bull 1899;7:223-563. Halsted WH. The treatment of wounds. Johns Hopkins Hosp Rep 1891;2(5): 255-313. Geelhoed GW. 'Hand in glove': a centennial observation on the surgical use of rubber gloves. South Med J 1991;84(8):1012-1017. Menting AM. Dressed not to kill. HarvardMedicine 2007(Winter). Available at http://harvardmedicine.hms.harvard.edu/bulletin/winter2007/Lphp; retrieved July 14, 2011. Barza M. Efficacy and tolerability of ClO2-generating gloves. Clin Infect Dis 2004;38:857-863. S. Robert Lathan, MD Corresponding author: S. Robert Lathan, MD, 122 Old Ivy Road, #17, Atlanta, Georgia 30342. Lathan, S. Robert
Source Citation Lathan, S. Robert. "Rubber gloves redux." Baylor University Medical Center Proceedings 24.4 (2011): 324. Academic OneFile. Web. 5 Mar. 2012.

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