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Georgia Court of Appeals Says No Vicarious Liability for Medical Student

In a factually complex ruling, the Georgia Court of Appeals has held that two surgeons and their practice group were not vicariously liable for the acts of a medical student as a matter of law. Plaintiff sued two surgeons, their practice group, the medical school, and a hospital after she was injured during a surgical procedure. The surgical practice group had contracted with a medical school to train and “supervise” medical students. During this particular procedure, the medical student was to hold a heated sponge stick in place. The student moved the sponge stick, resulting in a thermal burn. Plaintiff sued under theories of direct negligence against the surgeons, vicariously liability for the acts of the medical student, and negligent supervision. The vicarious liability theories were respondeat superior, borrowed servant, and principal and agency. The trial court granted summary judgment to the surgeons on vicarious liability and a majority of a three judge panel affirmed, making this physical precedent only.

The written contractual agreement between the surgical group and the medical school specified that the student was not an employee or agent of the surgical practice group. The majority held that this written language controlled on the issue of principal and agent liability. Plaintiff agreed the student was not an employee of the surgical group. As for borrowed servant, the majority reasoned that the surgeons did not have the “exclusive right” to terminate the student from the program and the student’s participation in the surgery did not require “professional skill and judgment.” Therefore, the borrowed servant doctrine did not apply. The majority distinguished another case factually because the administration of anesthesia by a student nurse required direct supervision from a physician by statute, which did not apply here.

The dissent wrote that there was a fact dispute on principal and agency liability. The reasoning was that the medical student testified that the surgical group ‘may’ have controlled the hours worked. In addition, the dissenting judge wrote that the medical school “yielded control” of the student to the surgical group during the procedure, among other things.

Notably, the majority relied on the Court of Appeals decision in Zeh v. Maso while the dissent relied on the special concurrence by one Supreme Court justice denying certiorari in the same case.

Take-home: Georgia’s laws regarding vicarious liability, principal and agency, borrowed servant, and respondeat superior require close factual attention.

The case is Statham v. Quang, ___ S.E.2d ___, 2024 WL 857105 (Ga.Ct.App. Feb. 29, 2024).