illiam P. Ware, D.O., et al v. Johnnie Timmons involves the death of a 17-year-old patient (Brandi Timmons) who underwent elective surgery to correct an overbite. The nurse anesthetist (Lil Hayes) decided to remove the breathing tube approximately 15 minutes after the surgery was completed. An anesthesiologist (Dr. Ware) was summoned over the hospital speaker system to monitor the removal of the tube. The anesthesiologist arrived to watch the nurse anesthetist remove the patient’s breathing tube. The patient was disconnected from the equipment that monitored her vital signs and was moved to the postanesthesia care unit (PACU).

The patient went into cardiac arrest minutes after she was reconnected to the monitoring equipment in the PACU. Her brain had suffered irreversible damage caused by events that occurred during recovery from anesthesia. The patient died as a result of the brain damage.

Johnnie Timmons, on behalf of her daughter’s estate, sued the nurse anesthetist, anesthesiologist and Anesthesiology and Pain Medicine of Montgomery, P.C, employer of both the nurse anesthetist and anesthesiologist, alleging medical malpractice and wrongful death. The plaintiff argued that the treatment provided by the nurse anesthetist to the patient during the postoperative recovery fell below the applicable standard of care. Invoking the doctrine of respondeat superior, the plaintiff alleged that both the supervising anesthesiologist and employer, Anesthesiology and Pain Medicine, were vicariously liable for the nurse anesthetist’s conduct. The plaintiff did not claim or offer evidence that the anesthesiologist was negligent in supervising the nurse anesthetist.

At trial the defense objected to the plaintiff’s claim that the anesthesiologist could be held vicariously liable for the nurse anesthetist’s conduct. The defense argued that the nurse anesthetist was an employee of Anesthesiology and Pain Medicine, not of Dr. Ware individually. The trial court overruled the objection. The jury instructions included:

“I charge you — as it relates to agency and vicarious liability, I charge you the issue of agency in this case is not in dispute. Both the physician [Dr. Ware] and the CRNA [Nurse Hayes] were at all times working within the line and scope of their employment with Anesthesiology and Pain Medicine of Montgomery, P.C.
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“The Court charges you further that the responsibility of Dr. Ware for the acts and omissions of Nurse Hayes is likewise not in dispute. Therefore, should you return a verdict in favor of the plaintiff and against [Nurse] Hayes, you must necessarily also return a verdict against Dr. Ware as well.”

The jury returned a verdict against the nurse anesthetist, anesthesiologist and employer and awarded the plaintiff $13.7 million in damages.

The issue on appeal was whether the trial court erred in instructing the jury as to the anesthesiologist’s vicarious liability for the acts of the nurse anesthetist. In a 5-4 decision, the Alabama Supreme Court reversed the trial court’s judgment in its entirety and remanded the case for a new trial.

Issues Before Alabama Supreme Court
1. Vicarious Liability Under Doctrine of Respondeat Superior: The trial court stated that based on the doctrine of respondeat superior, the anesthesiologist was liable for the nurse anesthetist’s tortious acts. To establish a claim based on respondeat superior, a plaintiff must establish the status of employer and employee. In Alabama proof of such relationship is established by analyzing whether an alleged employer 1) possesses a right of control over the alleged employee and 2) voluntarily entered into a relationship with the alleged employee. The court held that trial court’s instruction regarding Dr. Ware’s liability for the acts and omission of the nurse anesthetist would be correct only if the anesthesiologist and nurse anesthetist voluntarily entered into the relationship and that the anesthesiologist reserved a right of control.

In analyzing the first element, the court concluded that the anesthesiologist reserved a right of control over the nurse anesthetist. Dr. Ware conceded that as the supervising anesthesiologist, he had the right to control the nurse anesthetist’s actions. The nurse anesthetist also testified that she operated under “the supervision and direction of the anesthesiologist.” Moreover the hospital’s procedure manual required that “all anesthesia care… be directed by a qualified physician anesthesiologist.” Finally, Alabama law requires a nurse anesthetist to “function under the direction of a physician … who is immediately available.”

With respect to the second element, however, the court concluded that the anesthesiologist did not choose the nurse anesthetist. The right of selection resided in employer Anesthesiology and Pain Medicine. During Dr. Ware’s testimony as to the nature of the relationship between him and the nurse anesthetist, he stated they “would both be assigned to a case.” The plaintiff did not rebut his statement. Both parties testified that their involvement in the operation was within the course and scope of their employment with Anesthesiology and Pain Medicine. Even the plaintiff’s proposed jury instruction stated that both parties were at all times within the line and scope of their employment with Anesthesiology and Pain Medicine. The court held that the rules of agency reject the idea that co-employees are vicariously liable for the torts of another. Because co-employees do not individually agree to act on another’s behalf, the relationship is not consensual. Therefore the court concluded that “the doctrine of respondeat superior does not hold supervisors, as co-employees, vicariously liable for the torts of their subordinates. Supervisors lack the ability to willingly choose to enter the relationship with their subordinates; likewise subordinates do not have the ability to choose to enter into a relationship with their supervisors.” Because the plaintiff failed to introduce evidence that Dr. Ware, as the supervising anesthesiologist, had a right of selection, the court ruled that Dr. Ware did not choose the nurse anesthetist to assist him.

2. Vicarious Liability Based on Alternate Theories: In addition to analyzing whether the anesthesiologist is vicariously liable based on his supervisory status, the court analyzed whether Dr. Ware is vicariously liable based on his status as 1) a professional practicing in a professional corporation and 2) primary shareholder in Anesthesiology and Pain Medicine.

First, Alabama law provides that every individual who renders professional services as an employee of a professional corporation “shall be liable for any negligent or wrongful act or omission which he personally participates to the same extent as if he rendered such services as a sole practitioner” §10-4-390(a) Ala. Code. The plaintiff argued that the statute imposes vicarious liability on supervisors who are practicing in a professional corporation for the conduct of their subordinates. The court, however, rejected their argument and held that the statute imposed direct liability on Dr. Ware only for his negligence, wrongful acts or omissions. The language “in which he personally participates” prevented the court from holding Dr. Ware liable based merely on his status as a physician practicing in a professional corporation.

Second, the plaintiff argued that Dr. Ware is vicariously liable for the nurse anesthetist’s conduct based on his status as a shareholder of a professional corporation. In the Ala. Code, §10-4-390(b) provides that the personal liability of a shareholder of a professional corporation shall be no greater than that of a shareholder of a corporation organized under the Alabama Business Corporation Act. Because the doctrine of respondeat superior governs vicarious liability of corporations under such act, the court, for the same reason as set forth above, rejected the argument.

Implications
The ruling in Ware v. Timmons is narrow in its applicability. To begin, it is limited to vicarious liability in the state of Alabama. Furthermore the decision is based on the involuntary nature of the relationship between the anesthesiologist and the nurse anesthetist. Had the plaintiff introduced evidence that Dr. Ware requested to supervise the nurse anesthetist on this case or chose to enter into a working relationship with the nurse anesthetist, the court may have found the anesthesiologist liable under the doctrine of respondeat superior.

The ruling in Timmons hinged on its statement that supervisors lack the ability to willingly choose to enter the relationship with their subordinates and vice versa. Although the court seems to make a blanket statement in this regard, the plaintiff could easily introduce evidence to the contarary. Evidence that an anesthesiologist hired or recruited a nurse anesthetist or indicated in some manner that he or she preferred to work or only worked with a particular nurse anesthetist could support an argument that the relationship was voluntary. The court appears to leave this open because it also acknowledges that plaintiff’s failure to introduce evidence that the supervising anesthesiologist had a right of selection prevented the court from concluding that he chose the nurse anesthetist to assist him.  Therefore, under different facts and circumstances, it is possible that an anesthesiologist could still be held liable under the doctrine of respondeat superior in Alabama.