“The General Assembly knows how to impose legal liability if it so chooses, and we will not read into it [Physician Assistant Act] language that the General Assembly did not include,” the panel said in its opinion. “Therefore, we conclude that the trial court erred in finding that the PAA held vicarious liability for the supervision of physicians for the medical acts of their PAs, and we reverse the summary judgment denial [the defendant physician].”
In this case, the doctor and PA were employed by Northside anesthesia consultants, all of whom were named defendants. The plaintiff in that medical malpractice lawsuit withdrew his negligence claim against the doctor, but argued that he was vicariously liable for the PA’s alleged negligence because he was “responsible” to oversee the PA’s conduct. The trial court held that this liability supported the plaintiff’s claim for vicarious agents.
The Court of Appeals reversed this due to the fact that the PAA did not adopt specific language that imposed any form of liability on an attending physician. To justify its decision, it referred to other laws in which the imposition of liability was anchored in the respective legal language. The decision will be appealed to the Georgia Supreme Court.
Comment: Allegations of vicarious liability are frequently raised in medical malpractice lawsuits, in which a patient plaintiff alleges that an independent physician, while not an employee of a hospital, is acting as an agent of the hospital. Under these circumstances, the theory of the manager interviewed does not apply.
This liability theory has found fertile ground particularly in situations where the alleged negligence was committed by an anesthetist, clinician, or other clinician who has an independent contractual relationship with the hospital. In determining whether a hospital is liable under this theory, courts typically consider whether the patient has been informed prior to treatment that the provider is not a hospital employee and is therefore independently liable for acts of negligence. This can be accomplished through the use of signs, written informed consent, and verbal disclosures to the patient and their family members.
Although liability for agents in Georgia is an accepted common law theory, the Court of Appeals focused only on the language of the PAA, which was the sole basis of the plaintiff’s complaint.
