Vicarious Liability Was Proper Theory for Negligence of Hospital Personnel from Inadequate Ventilation to Angioplasty Patient During “Code Blue”

A patient filed a medical malpractice action against a physician in connection with the collapse of a blood vessel during an angioplasty procedure performed by the physician at a hospital. The trial court entered judgment on a jury verdict in favor of the defendants, and the patient appealed.


The Court of Appeals of Georgia considered several issues and held (1) a plaintiff injured by the negligent acts of hospital personnel while they are working as borrowed servants of an operating room doctor has an affirmative cause of action against the doctor under respondeat superior, without first having to sue the hospital so that the hospital can assert the borrowed servant doctrine as a defense; (2) the evidence supported a jury instruction on the borrowed servant doctrine for the alleged negligence of hospital personnel in purportedly not providing adequate ventilation to the patient after the physician called a “Code Blue” during the angioplasty procedure as the physician agreed at trial that when he entered the operating room he “took control of [the] surgical suite” and gave direct orders to the four hospital personnel in the room, and his expert witnesses agreed that he directed the actions of the others during the Code Blue; and (3) the patient failed to show that the physician withheld evidence regarding whether the patient was ventilated as part of receiving cardiopulmonary resuscitation (CPR), as necessary to give rise to a rebuttable presumption that the patient was not properly ventilated at that time, as the evidence produced by the physician included medical records regarding treatment of the patient during the Code Blue, and the physician introduced testimonial evidence that notations in those records were consistent with the patient's receiving ventilation as part of the CPR efforts.


The appeals court determined there was evidence supporting the plaintiff’s theory that the defendant doctor should be held vicariously liable, under the principle of respondeat superior, for the negligence of the hospital personnel pertaining to the ventilation of the plaintiff during the Code Blue. Accordingly, vicarious liability was a properly asserted and legally cognizable theory of recovery. Because the trial court failed to charge on this theory of recovery, the trial court must be reversed.


See: Hendley v. Evans, 2012 WL 5870649 (Ga.App.  Nov 21, 2012) (not designated for publication).