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Doctor Not Liable Under Nondelegable Duty Theory When Doctor Claimed to Order IV Without Drug and Nurse Gave IV With Drug


A child presented to a hospital children’s clinic with initial onset diabetes. The on-call doctor ordered an IV medication. A nurse administered an IV medication to the child that contained a mixture including calcium chloride. The child died.

 

The administratrix of the child’s estate sued the doctor who ordered the IV medication, the hospital, and the children’s clinic for wrongful death. During discovery the defendants indicated their expert’s testimony regarding the contents of the IV bag. Six months after the close of discovery, the plaintiff filed a motion to amend a pretrial order to add an expert in pharmacy, pharmacology, and toxicology to rebut the defendants’ expert testimony regarding the contents of the IV bag. The trial judge denied the motion as untimely. At the close of arguments, the jury was instructed that the doctor had a non-delegable duty to the decedent to assure that the physical examination, diagnoses, treatment and medication ordered were correct and properly administered. The non-delegable duty was described as meaning that if a doctor chooses to allow a nurse to perform a non-delegable duty, the doctor must accept responsibility if that duty is breached. The jury returned a verdict in favor of the plaintiff.

 

The judge granted a new trial on the grounds that the jury instruction had misstated the law regarding the physician’s non-delegable duty. Prior to the second trial, the administratrix filed a renewed motion to amend a pretrial order to add an expert in pharmacy, pharmacology, and toxicology. The trial court denied the motion. The jury in the second trial found for the defendants. The administratrix appealed arguing that the trial court abused its discretion when it granted the defendants a new trial because the jury instruction had not misstated the law and denied her motions to amend a pretrial order.

 

The Supreme Court of Mississippi affirmed the trial court’s decision holding that the trial court did not abuse its discretion. The court reasoned that the order granting a new trial on the grounds that the jury was improperly instructed did not permit reconsideration of the order denying the plaintiff’s motion for amend a pretrial order as untimely.

 

Additionally, the jury instruction improperly stated the law. Under Mississippi law, a physician has a nondelegable duty to render professional services consistent with that objectively ascertained minimally acceptable level of competence the physician may be expected to apply given the qualifications and level of expertise the physician holds him or herself out as possessing and given the circumstances of a particular case. Mississippi law imposes liability on a physician for the negligence of a nurse only if the nurse committed the negligent acts or omissions pursuant to the direction or control of the physician. This distinction is particularly relevant to this case, because the doctor claimed to have ordered an IV solution that did not contain calcium chloride. The administration of IV solution that did contain calcium chloride was not pursuant to the direction of the physician. The instruction went beyond the definition of nondelegable duty. It imposed vicarious liability on the doctor for the nurse’s actions.

 

See: Allcock v. Bannister, 2012 WL 5358985 (Miss., November 01, 2012) (not designated for publication).

 

 

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