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Doctrine of Respondeat Superior – Medical Law
CASE ON POINT: Sacks v. Necaise, 2007 MSCA 2006-CA-01068 (12/11/07) So.2d–MS
ISSUE: Ordinarily, patients suing physicians and/or hospitals for medical malpractice must have physicians as medical experts to testify on their behalf. In this case the alleged malpractice involved the doctrine of Respondent Superior. Simply put, should physicians and their practice groups be liable for the failure of registered nurses employed by them and their practice groups be liable for the continued infusion of potent drugs into patients’ arms, which have become swollen from two to three times normal size, turned color, and have been the source of pain to patients?
CASE FACTS: Charles Freeman was diagnosed with lung cancer in early 1998. Freeman, also suffered from diabetes, chronic obstructive pulmonary disease, atherosclerotic vascular disease, and mild organic brain syndrome. He began chemotherapy treatment by intravenous therapy on January 22, 1998, at the Medical Oncology Group, P.A. (MOG), under the supervision of Dr. Matthew Sacks. Freeman’s cancer was treated with Taxol, which is highly toxic and, at the time, commonly used in treating cancer patients. Freeman’s first treatment was relatively uneventful. On February 12, 1998, MOG’s staff administered a second treatment. During this treatment, Freeman experienced pain, swelling, and discoloration of the arm that was being infused. In spite of the condition of Freeman’s arm at the infusion site, Nurse Byrd continued to infuse Taxol through the same site. Over the next several days, the skin on Freeman’s arm began to peel off, and the area became swollen to two or three times its normal size, and characterized as a third degree chemical burn. On August 19, 1998, Freeman filed suit against Dr. Sacks and MOG. He alleged that MOG’s staff and Dr. Sacks, were negligent and vicariously liable for the continued administration of Taxol by Nurse Byrd, while standard nursing practice dictated that the infusion should have been discontinued. Freeman died in January 1999, from unrelated causes. His daughter, Nancy Necaise, was substituted as plaintiff. The key issue in the case was whether Pamela Jenner, a registered nurse with experience in administering chemotherapy, should have been allowed to testify as an expert witness for the plaintiff. Nurse Jenner testified that Nurse Byrd failed to comply with the applicable standard of care. The trial court allowed Nurse Jenner’s testimony to be admitted into evidence. After a bench trial, the trial court found Dr. Sacks and MOG liable and awarded the plaintiff $217,343.00. Dr. Sacks and MOG appealed.
COURT’S OPINION: The Court of Appeals of Mississippi affirmed the judgment entered for the plaintiff. The court held, inter alia, that the negligence in the continued administration of Taxol by Nurse Byrd was evident. The court rejected the defendants’ argument that Nurse Jenner was not qualified to testify. The court found that no more extensive expert testimony or even a more qualified expert was necessary for the trial judge to reach a conclusion that the improper administration of Taxol by Nurse Byrd caused damage to Freeman’s arm. The court concluded that it was undisputed that the patient suffered immensely following the infiltration, which resulted from the negligence in failing to discontinue the infusion of Taxol at the site.
LEGAL COMMENTARY: The court noted that the patient was hospitalized three times. As a chemotherapy patient, he was highly susceptible to infection. This was exacerbated by what was basically an open wound. The court further noted that the patient’s daughter testified that for the next eleven months after the injury and before his death, the patient’s arm had to be continuously bandaged, the skin bled on contact with almost any object, and her father was in almost continuous pain. The court rejected the defendants’ contention that the trial court erred when it allowed Nurse Jenner to testify as to the applicable standard of care. The court opined that as for the requisite standard of nursing care, all the experts agreed that the appropriate standard of nursing care required the immediate discontinuance of the infusion upon discovery of the patient’s symptoms. Despite the fact that the defendants’ expert witness on the proper standards for the administration of Taxol, had direct experience administering Taxol, while, Nurse Jenner, the plaintiff’s expert, had no experience in administering Taxol, the court concluded that it could not disturb the findings of the trial judge, who, since the trial was a bench trial, was the trier of fact. Further, the court noted that Dr. Sacks and MOG admitted that Taxol caused the injury to the patient through infiltration, which resulted in the patient developing cellulitis and skin breakdown necessitating multiple hospital stays. The court observed that Dr. Sacks dictation for hospital records was replete with references that the patient “had an infiltration of Taxol.” Further, he dictated that his impression of the patient’s arm was “cellulitis from infiltration of Taxol. Finally, the court noted Dr. Sacks agreed that it would be a breach of nursing standards for a nurse to continue to administer Taxol after a patient’s arm was swollen.
A. David Tammelleo JD Editor & Publisher
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law’s, Nursing Law’s & Hospital Law’s Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell’s Bur Register of Preeminent Lawyers, Marquis Who Who in American Law, Who’s Who in America and Who’s Who in the World.