Georgia Appellate Court Holds Supervising Physicians Not Liable For Negligent Acts Of Their Physician Assistants

Supervising Physicians Not Liable For Negligent Acts Of Physician Assistants: In its opinion dated February 24, 2023, the Court of Appeals of Georgia held: “the language of the PAA [Physician Assistant Act] does not expressly impose vicarious liability on supervising physicians for the negligent acts of their PAs. The General Assembly knows how to impose liability by statute when it chooses to, and we will not read into the PAA language that the General Assembly did not include. Therefore, we conclude that the trial court erred in finding that the PAA creates vicarious liability for supervising for the medical acts of their PAs.”

Underlying Facts

Carole Maso, individually as surviving spouse and as executrix of the Estate of Eugene Charles Maso, alleged that her husband, Dr. Eugene Maso, underwent an elective outpatient endoscopic retrograde cholangiopancreatography (“ERCP”) procedure on June 18, 2018. The anesthesia staff for Dr. Maso’s procedure included Dr. Zeh, an anesthesiologist, and Hammond, a physician assistant (“PA”). According to Maso, her husband died as a result of inadequate respiratory and ventilatory monitoring by Hammond. Maso sued Hammond, Dr. Zeh, and their employer, Northside Anesthesiology Consultants, LLC, for medical malpractice claims arising from the medical treatment provided to her husband. Maso subsequently filed motions to exclude testimony from two defense experts, which the trial court denied. Dr. Zeh filed a motion to exclude vicarious liability testimony and for summary judgment. The trial court denied Dr. Zeh’s motion, noting that because Maso had voluntarily withdrawn her direct liability claims against Dr. Zeh and agreed that her experts would not offer testimony regarding whether Georgia law provides a basis for the imposition of vicarious liability against Dr. Zeh, the only remaining issue raised by Dr. Zeh’s motion was whether he could be held vicariously liable for Hammond’s alleged negligence. The trial court found that, although Dr. Zeh could not be held vicariously liable under an actual agency theory, he was vicariously liable for Hammond’s conduct under the PAA. The trial court certified its order for immediate review.

The Court of Appeals of Georgia stated: “Before the PAA was passed, physicians could be vicariously liable for the negligence of other medical personnel based on principles of respondeat superior, agency, and imputed negligence … The General Assembly is presumed to have been aware of existing law, including vicarious liability principles, when it enacted the PAA … The General Assembly knows how to impose liability by statute when it chooses to, and we will not read into the PAA language that the General Assembly did not include. Therefore, we conclude that the trial court erred in finding that the PAA creates vicarious liability for supervising for the medical acts of their PAs and we reverse the denial of summary judgment to Dr. Zeh.”

Zeh v. Maso, A22A1289, A22A1290.

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