The existence of a duty will depend on the foreseeability of the injury to the plaintiff. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. The foreseeability of a criminal act depends upon the knowledge of the defendant, which must be determined by the totality of the circumstances, and it is only when the totality of the circumstances are somewhat overwhelming that the defendant will be held liable.
After a hospital discovered that one of its anesthesiologist abused drugs, it terminated the doctor's employment. However, he was retained in a faculty/researcher position. The doctor later gained access to the patient's home and siphoned morphine from his pump, resulting in a bacterial infection caused by the doctor's procedure. The victim filed a negligence action against the doctor and the hospital. The doctor pled guilty to criminal charges for his conduct and was given a prison sentence. The trial court dismissed the claim against the hospital for negligent retention and vicarious liability. The case was appealed to the Court of Appeals of Ohio.
Was the hospital vicariously liable?
The court held that the trial court erred in granting summary judgment in favor of the hospital. The fact that the hospital knew the doctor had siphoned morphine from the patient's pump and knew of the father-son type of relationship between the doctor and the patient created an issue of fact as to whether the doctor's actions were a foreseeable consequence of the hospital's decision to retain the doctor in a faculty/researcher position at the hospital. Moreover, the hospital was evasive when the patient inquired as to the doctor's whereabouts after the hospital had removed the doctor from his clinical duties. Further, an issue of fact existed as to whether the hospital was vicariously liable for the doctor's tortious acts because the fact that the hospital retained the doctor as an employee with access to the hospital's facilities and equipment made it reasonable for the doctor to perpetuate a fraud on the patient.