Georgia Appellate Court Reverses Trial Court Decision Holding Physician Variously Liable for PA's Alleged Negligence

"The General Assembly knows how to impose liability by statute when it chooses to, and we will not read into the [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 creates vicarious liability for supervising physicians for the medical acts of their PAs and we reverse the denial of summary judgment to [the defendant physician]."

In this case, the physician and the PA were employed by Northside Anesthesia Consultants all of whom were named defendants. The plaintiff in this medical malpractice suit withdrew its negligence claim against the physician but argued that he was vicariously liable for the alleged negligence of the PA because of his "responsibility" to supervise the PA's conduct. The trial court believed that such responsibility supported the plaintiff's vicarious liability claim.

The Appellate Court reversed based on the fact that the PAA did not adopt any specific language which imposed any form of liability on a supervising physician. It cited to other statutes in which the imposition of liability was incorporated in the specific language of the legislation to support its decision. The decision is on appeal to the Georgia Supreme Court.

Comment: Allegations of vicarious liability are commonly asserted in medical malpractice actions in which a patient plaintiff will claim 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 respondent superior does not apply.

This liability theory has found fertile ground especially in situations where the alleged negligence was committed by an anesthesiologist, hospitalist or other hospital-based physician who has an independent contractor relationship with the hospital. In determining whether a hospital is liable under this theory, courts typically will evaluate whether the patient was informed, in advance of any treatment, that the provider is not a hospital employee and therefore is independently liable for negligent acts. This can be accomplished through the use of signage, written informed consents and verbal disclosures to the patient and family members.

Although vicarious liability is an acknowledged common law theory in Georgia, the Appellate Court focused only on the language of the PAA which was the sole basis of the plaintiff's lawsuit.