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Harris v. Miller1/28/1994
r of complicated hoist held borrowed servant where borrower and lender expressly agreed employee would work under borrower's control). As is clear from the above-cited cases, the right of control may pass to a temporary employer, as a matter of fact, even where the borrowed employee has the skill of a specialist. When it does, respondeat superior liability must follow.
Therefore, consistent with traditional agency principles, we hold that a surgeon may be held liable under the doctrine of respondeat superior for the negligence of even a skilled assistant if the surgeon in fact possessed the right to control that assistant at the time of the assistant's negligent act regardless of whether the surgeon should reasonably have been aware of the negligent conduct sought to be imputed to him. Restatement (Second) of Agency ยง 227 comment a. To the extent that Starnes conflicts with this proposition, we now overrule it.
In summary, we hold that a surgeon should not, as suggested by Jackson, be presumed to enjoy the authoritative control of a master merely because he is "in charge" of the operation. To the contrary, under traditional borrowed servant principles, the hospital must be presumed to retain the right of control over its operating room employees. Nor, however, should the surgeon be exempted from respondeat superior liability, as suggested by Starnes, merely because the negligence sought to be imputed is that of a skilled specialist. Whether a surgeon may be held vicariously liable for the negligence of one assisting in the operation depends on whether, in the particular case, the surgeon had the right to control the manner in which the assistant performed.
B
Having outlined the proper reach of the borrowed servant doctrine in the context of the operating room, we turn now to the question of whether the trial court erred in granting Dr. Miller a directed verdict on plaintiff's vicarious liability claim. To answer this question, we must decide whether plaintiff's evidence of a temporary master-servant relationship between Dr. Miller and Nurse Hawkes was legally sufficient for his claim to be considered by the jury. United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). Unlike the Court of Appeals, we believe it was.
Most persuasive is plaintiff's evidence that Dr. Miller agreed with Beaufort County Hospital to control the performance of the nurse anesthetists, including Nurse Hawkes, assigned to his cases. See Producers Chemical Co. v. McKay, 366 S.W.2d 220, 226 (Tex. 1963) ("When a contract, written or oral, between two employers expressly provides that one or the other shall have right of control, solution of the [borrowed servant] question is relatively simple"). Such an agreement is indicated by the following language of the hospital's Anesthesia Manual, whose provisions Dr. Miller agreed to comply with as a condition of his staff privileges:
Anesthesia care shall be provided by nurse anesthetists working under the responsibility and supervision of the Surgeon doing the case.
Administration of anesthesia shall be the sole responsibility of the Surgeon and anesthetist involved, and it shall be their responsibility to select and administer a proper agent with proper techniques.
Since the director [of the Anesthesia Depart-ment] is not an anesthesiologist, it is understood that the performance of anesthetists, while providing direct services to patients, shall be under the overall direction and supervision of the physician responsible for the patient's care.
The Court of Appeals interpreted this language as vesting the surgeo
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