After Jacqueline Statham was injured following a routine gynecological surgery, she filed a Georgia medical malpractice lawsuit against her surgeons, David S. Quang and Tan-Loc Nguyen, and their employer, Women’s Healthcare, Inc. of Middle Georgia, P.C., alleging medical negligence due to their failure to properly supervise a medical student who assisted in the procedure. The parties filed cross motions for partial summary judgment, regarding whether defendants were vicariously liable for the student’s alleged medical negligence. The trial court found that defendants were not vicariously liable as a matter of law for the acts or omissions of the medical student, but that questions of fact exist as to the negligence and supervision claim. Statham appealed, arguing that the trial court erred by finding defendants were not vicariously liable.
Borrowed Servant Doctrine
A doctor may be found liable under the theory of respondeat superior for the negligent acts of his employees. The traditional definition of ‘employee’ has for at least a century contained within its purview borrowed servants. Ordinarily, when one lends his servant to another for a particular employment, the servant will be dealt with as a servant of the person to whom he is lent, although he remains the general servant of the person who lent him.
Accordingly, the borrowed servant doctrine is applied in the context of the tort doctrine of respondeat superior. It is a means of transferring the vicarious liability for an employee’s negligence from a lending employer to a borrowing employer.
The requirements for the borrowed servant doctrine to apply are well settled in Georgia. In order for an employee to be a borrowed employee, the evidence must show that (1)the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and(3) the special master had the exclusive right to discharge the servant. The three prongs of this test focus on the occasion when the injury occurred rather than the work relationship in general.
In the medical context involving the negligent acts of hospital employees during surgery, the three prong test requires the hospital to show that it (1) yielded control of its employees who are assisting in a surgical procedure; (2) the employees whose negligence the hospital seeks to impute to the surgeon are under the “immediate supervision” of the surgeon; and (3) the tasks involved professional skill and judgment.
Georgia law is clear that when considering the relationship between parties, a written contract controls the terms and scope of that relationship. And where the contract establishes the responsibility of the parties it also establishes whether the borrowed servant doctrine or other agency principles apply.
The Court of Appeals of Georgia stated in its February 29, 2024 opinion: “the agreement between PCOM and the host agency specified that the medical student was not considered an employee or agent of the practice, nor was the agreement intended to create any agency, employer/employee, or fiduciary relationship between the parties. The parties’ contract provided only that the practice was to provide the medical student with supervised medical training through PCOM’s clerkship program. No compensation or employment benefits from the practice were conferred on the medical student, and both the practice and PCOM were mutually vested with the right to terminate the student’s participation in the program. The fact that PCOM paid the surgeons to supervise the medical student in no way alters the parties’ intent that no agency or employment relationship would be created under the agreement with respect to the medical student, who was not so paid. Because the clear and unambiguous terms of the agreement show that the parties did not intend for it to create an agency or employment relationship, we conclude that no such relationship existed … Moreover, Statham has not shown that the medical student was a borrowed servant so as to make the surgeons vicarious liable … the surgeons did not retain the exclusive right to terminate the medical student from the program; rather both parties retained that right … with regard to the borrowed servant doctrine in the medical context, the medical student’s participation in the surgery did not require a level of “professional skill or judgment,” but rather only involved her placing and holding the sponge stick as the surgeons directed … Accordingly, the borrowed servant doctrine does not apply.”
Statham v. Quang, M.D., A23A1419.
If you or a loved one may have been injured (or worse) as a result of surgical malpractice in Georgia or in another U.S. state, you should promptly find a Georgia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your surgical malpractice claim for you and represent you or your loved one in a surgical medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.
