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Suburban Hospital12/8/2000
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Preliminarily, we note that Anderson did not delegate the nursing task to Paul--Smith did. More substantively, the definition section of § 10.27.11.02.B(7) defines "' esponsibility'" to mean "the charge to do something." The term "responsible" is also used in § 10.27.11.03.D(6) relating to "assuring accurate documentation." These uses of the term "responsible" do not impose on a supervisor nurse, who is not personally negligent, a form of respondeat superior liability for tort damages derived from the negligence of one or more persons who report to the supervisor.
At least one purpose for the regulation's stating that the delegating nurse is "responsible for the delegated task" is to make the delegating nurse subject to possible disciplinary action by the Board because of the act or omission of the delegatee. The disciplinary provisions in the statute, however, make plain that the General Assembly never intended for the Board to impose discipline or liability without fault on registered nurses. HO § 8-316(a) lists thirty-three grounds on which the Board may impose professional discipline. These include:
"(9) Is grossly negligent in the practice of registered nursing ...;
....
"(22) Delegates nursing acts or responsibilities to an individual that the applicant or licensee knows or has reason to know lacks the ability or knowledge to perform;
....
"(24) Fails to properly supervise individuals to whom nursing acts or responsibilities have been delegated[.]"
It is inconsistent with the statute as a whole to read subsection (24) as authorizing the Board, by regulation, to create respondeat superior liability on supervising registered nurses when subsection (22) requires actual negligence in the act of delegating and subsection (9) refers to gross negligence as a ground for imposing discipline. Under these circumstances the failure "properly" to supervise that is sanctionable under HO § 8-316(a)(24) means, at a minimum, a negligent failure.
For these reasons, the judgment in favor of Anderson will be affirmed.
VII.
The sole point raised by Paul's petition for certiorari is her claimed entitlement to credit against the judgment for the amount of compensation paid to Kirson. Paul is not so entitled. She was not the employer and did not pay any compensation. See LE § 9-902.
JUDGMENT OF THE COURT OF SPECIAL APPEALS IN FAVOR OF THE CROSS-PETITIONER AND RESPONDENT, PHYLLIS R. KIRSON, AND AGAINST THE PETITIONER AND CROSS-RESPONDENT, SUBURBAN HOSPITAL, INC., VACATED, AND CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THAT CLAIM TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
JUDGMENT OF THE COURT OF SPECIAL APPEALS IN FAVOR OF THE CROSS-RESPONDENT, MARY ANDERSON, AFFIRMED.
JUDGMENT OF THE COURT OF SPECIAL APPEALS IN FAVOR OF THE CROSS-RESPONDENT, MARY BETH SMITH, REVERSED. THAT CLAIM IS REMANDED TO THE COURT OF SPECIAL APPEALS WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IN FAVOR OF PHYLLIS R. KIRSON AGAINST MARY BETH SMITH.
JUDGMENT OF THE COURT OF SPECIAL APPEALS IN FAVOR OF THE RESPONDENT, PHYLLIS R. KIRSON, AGAINST THE PETITIONER, APARANGI PAUL, AFFIRMED.
COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID ONE-HALF BY THE CROSS-PETITIONER, PHYLLIS R. KIRSON, ONE- QUARTER BY THE CROSS-RESPONDENT, MARY BETH SMITH, AND ONE-QUARTER BY THE PETITIONER, APARANGI PAUL.
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