A NURSE'S NEGLIGENCE

Evening Post, Volume CXIX, Issue 78, 2 April 1935, Page 11

A NURSE'S NEGLIGENCE

IS BOARD LIABLE? AN IMPORTANT APPEAL MASTER-SERVANT LAW An appeal against the judgment of Mr. Justice Kennedy, who decided that, though a Waitaki Hospital nurse by her negligence had caused injuries to Ernest Logan, a labourer, and that the damages suffered amounted to £ 1350, there was no liability on the part of tha hospital board,. }s being heard by the Court of Appeal consisting of their Honours the Chief Justice (Sir Michael Myers), Mr. Justice Reed, and Mr. Justice Johnston. Mr. P. J. O'Regan and Mr. Grater appear for the appellant, and Mr. W. H. Cunningham and Mr. J. H. -Main for the respondent. In January, 1932, the appellant received head injuries at' the Waitaki hydro-electric construction works and was admitted to the public hospital at Oamaru. Following an operation, orders were given that the patient have radiant cradle treatment to maintain the temperature of his body. Instructions were given the nurse to watch the temperature very closely- and to keep it within a certain range. The patient's knee was burned and his leg afterwards was amputated. , APPELLANT'S CONTENTION. Mr. O'Regan argues in effect that the nurse, whether doing ministerial and routine duties or acting in a professional capacity, ivas a servant and that the board was the master under a contract of service in such circumstances as to render the board liable for the nurse's proved negligence, TRIAL JUDGE'S VIEW. The judgment of Mr. Justice Kennedy stated, inter alia: "If the board is to be held liable it must be on the ground that the nurses are not only the general servants of the board but are, in the actual care and treatment of the patients pursuant to the directions of the doctor, the servants of the board. It has been decided in New, Zealand by the Court of Appeal in District of Auckland Hospital and Charitable Aid Board v. Lovett: 10 N.Z.L.R. 537, that where a board, incorporated under the Act of 1835, provided gratuitous medical and surgical attendance and nursing, but made a small charge for board only, there was no responsibility f^or the negligence of the medical superintendent i in the discharge of his professional duties. ..." In a general statement of the scope and implications of the issue, Mr. Justice Kennedy also said: — "I think that tills case must be taken as denning the responsibility of a board to, a patient receiving treatment in a hospital for negligent treatment by a doctor, and the question arises whether the undertaking in respect of a nurse is in any* way different. In the professional treatment of a patient a nurse is, from the nature of things, bound to apply her professional skill and training, always subject, not to any orders from the board on such treatment,'but to the orders and directions of the medical attendant, whether he be on the honorary staff or a salaried officer in the employment o£ the board. "I think, therefore, that from the nature of things, in the absence of a contract otherwise providing, the proper inference is that in the application of her professional skill, as distinct from. the. discharge of a mere; ministerial duty, "a nurse engaged in carrying out treatment under the directions of a doctor, where her professional skill is" involved, is not the servant of the board. The board could not proporly interfere by rule or by supervision with her work under such circumstances. I think that in such matters a board's responsibility for the nurse's acts or omissions is similar to its;- responsibility for the acts or omissions of a doctor. DOCTORS AND NURSES. "In treatment, a doctor applies his professional skill according to his judgment. So also, a nurse applies her professional skill in the treatment of a patient, subject to the directions of the doctor, and not subject to the directions or orders of the board. When carrying out . professional treatment subject to a doctor's orders, nurses are not 'put in the place of the board to do an act which the board intended to do by itself.' The negligence of the nurse or nurses was not in the discharge of mere ministerial duties. I do not draw the inference that the board undertakes medically to advise and to treat. •On the contrary, it undertakes only to supply or to have available properly-qualified nurses to assist in carrying out the treatment prescribed by the medical officers and to act as their assistants and under their control. "I see no difference between a surgeon and a physician and the responsibility for a nurse when assisting a surgeon and the responsibility, for a nurse when assisting a physician. If, in either 'case, she is discharging a professional duty, she is subject to their orders and directions and not to those of the board. The board may generally direct what work is to be done, but not how professional work is to be carried out." - The appellant seeks to have Mr. Justice Kennedy's judgment overruled. The matter is an important one, and an interesting one from a legal point of view. . Argument is proceeding.