Vicarious and Corporate Liability:
Vicarious liability is liability of a superior for the actions of one’s servant (Wilson v. United States, 989 F.2d 953 (8th Cir. 1993)).This form of liability arises when there is a close enough relationship that the superior has direct control, which will impose automatic liability for a breach of a servant (Baez, 2010). For this liability to be applied the servant must be acting in the course of employment/control of the superior (Medili, 2011).
Corporate negligence occurs when there is some act of the employee/servants of the organisation. However, there is not direct liability of the employee/servants, because there is a failure is at a company level (Bright, 2008). This will include failing to provide proper safety plans or safe working conditions. The liability relies on the extent that the company knew or should have known about the potential failure in procedure (or lack of procedure) (Lloyd Noland Hospital v.’Durham, 906 So. 2d 157 (Ala. 6.’2005)).
The Mistakes in Norton v Argonaut Insurance:
Norton v.’Argonaut Insurance Co., 144 So.2d 249 (La 1962) illustrates a series of mistakes, both at an employee and corporate level. The administration of the drug to the baby was identified as:
“Elixir Pediatric Lanoxin 2.5 cc (0.125 mg) q6h X 3 then once daily”.
This medication note by the physician was not clearly identified. The Nurse, Mrs Evans, recognised that a 0.125mg was to be given every six hours for three doses then daily. The next problem to determine is what form it should be administered, because there are three ways. The nature of the administering the drug can have a significant effect on the child due to the reaction times. The child had been administered the drug through elixir drops and when readmitted required an increased dosage. The nurse used the injectable form, because no other plan was given by the doctor.
The amount in injectable form was fatal, which meant the nurse should not have administered this way (i.e. the reasonable nurse should have known not to inject this level of drug into the baby). However, the case also identified that there should have been an obligation on the physician to provide a full medication plan. The physician’s dosage was not negligent, but the hospital’s failure to provide and enforce a policy of full medication plans is essential. This means that:
The nurse is liable for administering the drug in injectable form;
The hospital is liable for not providing a full medication plan (i.e. a physician should record the plan clearly). This is corporate negligence.
The hospital will be vicariously liable for the actions of the nurse.
Preventing the Failures of Norton v Argonaut Insurance:
Preventing actions akin to Norton v.’Argonaut Insurance Co is essential, which can be achieved through requirements on medication plans (Anselmi, 2011). An important factor that is highlighted in this case is there was not sufficient monitoring and recording of how to administer drugs (Saunier, 2011). This means that a detailed plan must be developed, because not every nurse or other administering professional will know of the means commonly used. Thus, the first step is that there is an obligation to write a detailed plan on the physician.
Another issue that was highlighted was the injectable form was identified as high for a baby. Thus, if there are such concerns then there should be a query raised through main administrators to check if the plan is correct; rather than just following orders (Anselmi, 2011). The implication is that precaution is taken if there is a potential flaw in the plan. Therefore, all levels of the hospital have to have accountability in its procedures in drug administration.
Safeguards in Place:
The safeguards that are in place today include the obligation on the physician to provide a full drug administration plan. The pharmacist on site has an obligation to ensure that the level and nature of drug are appropriate to the patient. Finally, the nurse and all other administering professionals have an obligation to challenge medication programs that are dangerous to the patient. These safeguards are important, because they will limit corporate, vicarious and personal liability of the hospital (Bright, 2008). The inference of this is that there needs to accountability and transparency within the whole system to ensure that such acts do not reoccur.
What is Pretermitting?
Pretermitting occurs when there is a necessary omission by an individual organization. The act of omission in this case is by the physician when he does not put the form of drug administration on the medication direction. The problem is that such an omission can give rise to liability (Gilker, 2011). In this case, the direct act of the nurse resulted in personal liability. However, the failure to provide a full medication plan by the physician resulted in corporate liability (Northern Pacific Railway Company v. Adams, 192’US’440 (1904)) This is because there was no obligation to record the medication plan within the hospital (i.e. there was liability by omission).