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No Respondeat Superior Claim Against Surgeon

In this suit alleging a patient at Sentara Norfolk General Hospital died due to negligence during post-surgical care for treatment of her ischemic leg, a Norfolk Circuit Court dismisses respondeat superior claims against defendant surgeon, a medical school faculty member, for lack of duty.

The court previously ruled the Virginia Tort Claims Act did not apply to Eastern Virginia Medical School and thus dismissed plaintiff’s claim against the commonwealth. Also, plaintiff’s claims against EVMS, Dr. Shin, who allegedly determined decedent needed a central venous line during her post-surgical care, and Dr. Poulin, who assisted Dr. Shin, were dismissed based on those defendants’ pleas in bar of sovereign immunity.

Dr. Shinn was a fifth year resident in the employ of EVMS and Dr. Poulin was a third-year resident employed by EVMS. Dr. Stokes was a surgeon with Vascular and Transplant Specialists, who also was on the faculty at EVMS. Sentara owned the facility within which decedent was a patient.

The complaint alleges no negligent acts by either Stokes or any Sentara employee. Plaintiff’s position is that Stokes and Sentara are liable under respondeat superior to pay money damages for the independent negligent acts of Dr. Shin and/or Dr. Poulin.

Decedent was transferred from Sentara Leigh Hospital to Sentara Norfolk General Hospital for treatment of an ischemic leg. Dr. Stokes performed the surgery assisted by

Dr. Shin. Dr. Shin determined decedent needed a central venous line and authorization

was granted by EVMS. It is alleged Dr. Shin and/or Dr. Poulin negligently caused decedent’s death by the manner in which they attempted to insert this “central line.”

Through testimony, it has been established that EVMS controls the hiring, training, curriculum, schedules and supervision of the residents.

EVMS does not own a hospital. Sentara is a venue for EVMS and the residents to conduct their training (EVMS also sends residents to non-Sentara facilities such as Children’s Hospital of the King’s Daughters and Bon Secours DePaul Hospital).

In the face of prior decisions and the court’s findings that EVMS and its residents are entitled to sovereign immunity and that EVMS does not fall under the State Tort Claims Act, plaintiff advances agency theories to hold the surgeon and hospital liable for money damages for the negligent acts of residents in their treatment of a patient post-operatively in the ICU.

The parties agree the four-pronged test provides the basis for finding an agency relationship, as illustrated in Hadeed v. Medic-24 Ltd., 237 Va. 277 (1989), which considers selection and engagements of the servant, payment of compensation, power of dismissal and power of control.

Plaintiff points to funding provided by Sentara to EVMS to support the residency program. Plaintiff also points out that Sentara could theoretically ban a resident from their facilities if the resident violated Sentara rules and regulations such as smoking. Plaintiff also points to specific sections of the contract between Sentara and EVMS regarding the residency program as evincing an agency relationship between the residents and Sentara. The court finds none of these arguments support plaintiff’s theory. The court finds that Dr. Shin and Dr. Poulin were not agents of Sentara when caring for decedent in the ICU.

There is no legal theory by which to hold Stokes responsible to pay money damages for what went wrong in the ICU. The court also finds Dr. Shin and Dr. Poulin were not agents of Dr. Stokes.

Among the several relationships, only the “EVMS-residents” relationship satisfies the four-prong test of agency. Only EVMS could be held liable as respondeat superior for money damages for the independent torts of their resident employees. However, the court has ruled that EVMS is entitled to sovereign immunity and the General Assembly has not waived that immunity.

The court grants Sentara’s motion to dismiss and grants Stokes’ motion to dismiss for lack of duty. The court does not reach Stokes’ alternative claim of sovereign immunity for his activities as an EVMS faculty member.

Baird, Adm’r v. Stokes (Doyle) No. CL 10-227, Feb. 2, 2012; Norfolk Cir.Ct.; Judith M. Cofield, T. Todd Gerber, Christy W. Manolo, AAG; A. William Charters, Jason Davis for the parties. VLW 012-8-022, 5 pp.

VLW 012-8-022

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