A man presented to the emergency room (ER) at night complaining of a severe headache and double vision. The emergency medicine physician on duty telephoned the man’s personal physician and discussed possible causes for the man’s medical complaints. The emergency medicine physician ordered a head CT to eliminate the possibility that the man’s complaints were the result of bleeding in the brain or a tumor. The CT study was conducted in the early morning hours of the following day.
The radiology resident on duty was an officer on active duty in the United States Air Force (USAF), working as a medical resident at the hospital pursuant to an agreement between the USAF and the hospital and an employment contract between the radiology resident and the hospital. The radiology resident issued her preliminary interpretation of the CT study, concluding there was left sphenoid and ethmoid sinusitis and that there was no bleed and no mass affecting the brain. By “no mass effect,” the radiology resident meant the CT study did not show any distortions of the structures in the man’s head that would suggest a tumor or growth was present. The radiology resident faxed her preliminary report to the emergency medicine physician.
Upon receiving the report, the emergency medicine physician was concerned that the radiology resident’s interpretation of the CT results did not comport with the symptoms and complaints the man presented and discussed the matter directly with her. The radiology resident told him there was no evidence of a tumor or bleeding in the brain and that the man was only suffering from sinusitis. The radiology resident did not recommend an MRI study. The emergency medicine physician telephoned the man’s personal physician, telling him that the CT study had revealed only sinusitis.
The man remained in the ER for about three more hours, his headache and double vision improving. He was then discharged.
The hospital’s radiologist reviewed the man’s CT study with the radiology resident and observed abnormalities the radiology resident had not reported. She told the radiology resident the study results suggested the presence of a tumor and that MRI imaging was necessary. She instructed the radiology resident to speak with the emergency medicine physician to tell him about the possibility of a tumor and the need for an MRI.
A few hours later that morning, the radiologist noticed that the substance of her conversation with the radiology resident was not in the radiology resident’s report of the man’s study. The radiology resident explained she had “pre-dictated” the report before that conversation took place and had not yet amended it. The radiology resident assured the radiologist that she had alerted the emergency medicine physician to the possible presence of a tumor and the need for an MRI. The radiologist directed the radiology resident to prepare an addendum to her report to include that information. In her addendum, the radiology resident wrote she had discussed the man’s CT study with the emergency medicine physician, told him the presence of a tumor could not be excluded and that an MRI was necessary.
The man returned to the ER that evening complaining of a severe headache and impaired vision. He lost the vision in his left eye while he was in the ER. An MRI study performed the next day revealed the presence of a large but benign pituitary tumor that was pressing on his left optic nerve. Later corrective surgery did not improve his vision, and the man is permanently blind in his left eye.
Four days later the emergency medicine physician received a copy of the radiology resident’s report and addendum concerning the man. The emergency medicine physician complained to the radiologist that the report was not accurate and needed to be changed. Thereafter, he wrote an addendum to his own report, detailing his version of what had occurred.
The man and his wife sued the radiology resident, the radiologist, the radiologist’s practice group, the emergency medicine physician, and the hospital. The complaint alleged medical malpractice. After learning that the radiology resident was an officer in the USAF, they filed a notice of claim under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671–80 (FTCA) with the USAF.
The United States filed a scope-of-employment certification pursuant to this provision, asserting the radiology resident was a USAF officer acting within the scope of her employment at the time of the incident involving the man. After the administrative review was completed, the United States moved for summary judgment, arguing that it could not be held to be vicariously liable for the radiology resident’s negligence because it was only her “general employer” under the borrowed-servant doctrine and not her “special employer.” The United States was granted summary judgment because the USAF did not exercise the requisite direct, broad, and “on spot” control over the radiology resident that identified a special employer who could be liable under the borrowed-servant doctrine.
At trial, the couple’s expert testified that, if the man had corrective surgery prior to losing his vision, he would have likely retained the sight in his left eye.
After a trial, the jury found the radiology resident at the hospital deviated from accepted standards of medical practice, proximately causing the man to lose vision in his left eye, and awarded the couple $2,500,000 in damages. The jury also found that the emergency medicine physician and radiologist did not commit malpractice. Because the radiology resident was an officer on active duty in the USAF at the time she provided medical service to the man, she was immune from personal liability pursuant to the FTCA, and the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C.A. §§ 2679(b), (d) (Westfall Act). The Superior Court of New Jersey, Law Division, Morris County, determined the hospital was vicariously liable for her negligence, reduced the judgment to $250,000 pursuant to the Charitable Immunity Act, N.J.S.A. 2A:53A–7 to –11(CIA), and entered judgment against the hospital for that amount.
The couple asked that judgment be entered against a “Jane Doe” radiologist, rather than the radiology resident. The trial court denied the couple’s request.
After the verdict was rendered, the hospital filed a motion for judgment notwithstanding the verdict (JNOV) on the ground that the radiology resident was exclusively a “borrowed servant” of the radiologist and her practice group. The trial court denied the hospital’s motion.
The Superior Court of New Jersey, Appellate Division, affirmed. The court held that the trial court did not err in denying the couple’s request to substitute a Jane Doe defendant for the radiology resident after the verdict so their recovery would not be subject to the $250,000 CIA limit, the imposition of vicarious liability upon the hospital was not contrary to law and the facts in this case, and the radiology resident was not exclusively a borrowed servant of the radiologist and her practice group.
The trial court did not err in denying the couple’s request to substitute a Jane Doe defendant for the radiology resident after the verdict so their recovery would not be subject to the $250,000 CIA limit. The fictitious defendant rule was promulgated to address the situation in which a plaintiff is aware of a cause of action against a defendant but does not know the defendant’s identity. No final judgment shall be entered against a person designated by a fictitious name. The couple had a remedy against an identified tortfeasor, the radiology resident, which they pursued. The relaxation of the fictitious defendant rule would require the court’s complicity in adopting a fiction for the sole purpose of enhancing the couple’s recovery. The fact that the available remedy yields less of a recovery because the CIA applies did not place the couple in a position that demanded judicial intervention and relaxation of the fictitious defendant rule.
The imposition of vicarious liability upon the hospital was not contrary to law and the facts in this case. The FTCA states it provides the exclusive remedy the injured party has against the employee whose act or omission gave rise to the claim. The FTCA does not preclude an injured party’s action against any other party based upon the negligence of a federal employee. The FTCA does not limit an injured party to whatever remedy exists against the United States. The very reason that the complaint was dismissed against the United States was that the hospital, and not the United States, exercised control over the radiology resident as her special employer. The hospital must therefore bear liability for her negligence.
The radiology resident was not exclusively a borrowed servant of the radiologist and her practice group. The contract between the USAF and the hospital explicitly provided that the radiology resident would be performing duties under the exclusive control and for the primary benefit of the institution, and therefore, for purposes of liability, the radiology resident was a servant of the hospital. The employment agreement between the hospital and the radiology resident, provided that the radiology resident would serve on the hospital’s resident staff and perform the customary duties and obligations associated with such service in the residency program. The hospital agreed to pay her a $2600 stipend for her work, give her paid holidays and other employee benefits, and provide malpractice insurance for her. Although the employment agreement between the hospital and the radiology resident stated the radiology resident would receive general direction from, and was generally answerable to, the radiologist, only the hospital had the right to terminate the radiology resident’s employment. The radiologist supervised the radiology resident’s activities, and both of them worked toward a common goal that benefited the hospital, providing radiology services for the hospital’s patients. The couple’s expert acknowledged that the radiologist acted within the accepted standards of medical care in instructing the radiology resident to call the emergency medicine physician with the information about the imaging study and also, in trusting the radiology resident to do so. The court concluded that the hospital’s JNOV motion was properly denied.
The Superior Court of New Jersey, Appellate Division, affirmed the trial court’s denial of the couple’s request to substitute a Jane Doe defendant for the radiology resident and imposition of vicarious liability upon the hospital.
See: Kulper v. Schwartz, 2015 WL 5209633 (N.J.Super.A.D., September 8, 2015) (not designated for publication).
See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis
See the Medical Law Perspectives June 29, 2015, Blog: Failure to Diagnose Cancer Claims Face Hurdles, Especially in New York.
See the Medical Law Perspectives October 24, 2014, Blog: Medical Expert Testimony Not Necessary to Establish Standard of Care for Failure to Communicate Cancer Diagnosis.