IN THE CASE OF THE INCORRECTLY LABELED X-RAYS, THE EMPLOYER IS
RESPONSIBLE UNDER RESPONDEAT SUPERIOR
A 6-month-old infant is admitted to the hospital with a bad cold. The attending
physician, listening with her stethoscope, detects heave congestion in the left lung.
Based on the preliminary exam, the attending physician orders chest x-rays at a vertical
chest x-ray unit. (The radiographer is use to seeing adult patients learning with the
chest against the x-ray film cassettes, so that the right lung is on the right side of the
film. Infants, on the other hand, because of their size, are placed in the supine position,
lying face up on the x-ray film cassettes. This means that for an infant, the right lung
would be on the left side of the film).
The x-ray technologist, forgetting that the baby's body is reversed from the customary
(adult) orientation, inadvertently marks an "R" on the upper right-hand side of the film
which is, in fact, the infant's left lung. Based on the inaccurately labeled x-rays,
inappropriate treatment is provided and the baby dies. The parents sue the hospital,
the attending physician, and the radiologist. Under respondeat superior, the employer
(the hospital) is liable for the acts of its employees, that is, the x-ray technologist. The
physician could be liable for negligence in not recognizing the mistake.
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FURTHERING ONE'S OWN BUSINESS INTERESTS
An Army physician retires to go into private practice in Nebraska. He asks a sergeant,
an x-ray technologist who is also retiring, to join his practice.
In the wide-open spaces of Nebraska, the physician finds a huge market for portable
ultrasounds at nursing homes. The physician buys a van and ultrasound equipment,
and has the ex-sergeant make the rounds of the nursing homes to take the x-rays.
If the sergeants were found to be negligent, it is most likely that the employer (the
physician) could be sued under respondeat superior. The ex-sergeant, employed by
the physician and using the physician's van and equipment, has acted to further the
interests of his employer.
But, it the ex-sergeant bought a van and equipment (licensed in the physician's name)
and contracted a radiologist to read the films, the ex-sergeant, as the owner furthering
his own interests, would more likely be sued than the physician.
In both cases, the claimant could opt to sue either the employer or the employee, but
the employer would be the one more likely to be sued.
Initially, respondeat superior did not apply to the US Government. The Government
could not be held accountable for the negligent acts of its employees.
MD0066
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