Kelly on Malpractice

In Huber v. Marlow, 2008 WL 2199827 (Tenn.Ct.App.), the patient was admitted to the hospital by her primary physician, Dr. Marlow, who examined and treated her from June 4-6. Dr. Marlow then transferred care of the patient to Dr. Rankin. The patient got out of her hospital bed and fell, sustaining a head injury. The patient underwent surgery to relieve the pressure caused by the hemorrhage. She died two days later. The death certificate listed as her immediate cause of death the intracranial hemorrhage. The patient’s family sued Dr. Marlow, the hospital, and the practice group, which was the employer of Drs. Marlow and Rankin. However, the patient did not amend the complaint to blame the practice group for the negligence of Dr. Rankin pursuant to respondeat superior until three years after the patient fell. The trial court granted summary judgment to the practice group based on the medical malpractice three-year statute of repose. The sole issue on appeal was whether the trial court erred in granting summary judgment to the employer (the practice group) because it could not be held vicariously liable for the actions of its nonparty employee (Dr. Rankin) when the statute of repose had run as to Dr. Rankin before the plaintiffs amended their complaint to include allegations based on his actions.
The sole theory or source of liability for the practice group was the respondeat superior doctrine. Revisiting Johnson v. LeBonheur Children’s Med. Ctr., 74 S.W.3d 338, 343 (Tenn.2002), the Court of Appeals found that “a principal may not be held vicariously liable under the doctrine of respondeat superior based upon the acts of its agent: (2) when the right of action against the agent is extinguished by operation of law. Because the right of action against Dr. Rankin was extinguished by the statute of repose, the Court of Appeals held that the right of action against the practice group based on Dr. Rankin’s negligence was also extinguished by operation of law. Therefore, the Court of Appeals held that because the statute of repose extinguished the plaintiffs’ cause of action against the nonparty employee, the employer cannot be held liable for allegations of medical negligence based solely on the actions of the nonparty employee.

The merits of this decision are dubious at best, but we must live with it. First, sue the agent physician if he/she has a pertinent role in the patient’s care. This prevents what could be construed as a “Huber problem.” Second, add a provision to your scheduling order as a prophylactic measure that forbids the employer hospital or practice group from blaming another agent after the three-year statue of repose expires. Defendants will seize on this opinion to blame their other employees after the statute of repose has expired. Finally, liberal pleading blaming all employees in the complaint might solve the problem.

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