Colorado Appeals Court finds Physician can be vicariously responsible for negligence of covering physician.

In Hall v. Frankel,, M.D. and Hall v. Robinson, M.D. et al, 05 CA 2696 and O6CA1774, the Colorado Court of Appeals found that a Physician can be vicariously liable for he negligence of a covering physician. Walter G. Robinson, M.D. performed knee replacement surgery on Dennis Hall on June 4, 2002.  Mr. Hall died of blood clots to his heart and lungs on June 12, 2002.  Dr. Fujisaki, another orthopedic surgeon in Dr. Robinson’s professional corporation “covered” Mr. Hall’s past surgical care between June 6 and June 12, 2002.  The jury found Dr. Robinson individually negligent and also responsible for the negligence of Dr. Fujisaki.

Dr. Robinson appealed the action of the trial court in instructing the jury that he could be responsible for the negligence of Dr. Fujisaki on an agency theory.  Dr. Robinson asserted that he could not be held vicariously negligent for the actions of Dr. Fujisaki as a matter of law.

The Court of Appeals noted that the relationship between an attending physician and a covering physician is not in and of itself sufficient to establish an agency relationship, resulting in vicarious liability.  The Court referred to case law in other states and treatises to the effect that an attending physician cannot be vicariously liable for negligence of a covering physician unless a plaintiff can show a relationship between the two physicians such that the attending physician has the right to control the medical performance of the covering doctor.  The Court concludes that:

The surgeon has not cited us to any authority, and we have not found any holding that a licensed physician may not supervise and direct another licensed physician in the care of a patient as a matter of law.

Therefore, we reject physician’s argument that one physician may not be vicariously liable for the professional negligence of another physician as a matter of law.

The Court didn’t identify a specific case where such control existed nor did it explore the apparent level of control asserted by Dr. Robinson in this case.  This is an odd decision that presumes to assume significance beyond its reach.