## Facts

- Mary Louise Diggs, an elderly patient, underwent gallbladder surgery at Forsyth Medical Center in September 1999.
- Diggs alleged negligent care by the hospital’s nursing staff and by the anesthesia team.
- Anesthesia services at the hospital were provided exclusively by an independent anesthesia group (Piedmont) under contract; the anesthesia providers involved were a physician anesthesiologist and a nurse anesthetist employed by that group.
- During intubation, the nurse anesthetist allegedly punctured Diggs’s esophagus, causing serious injury.
- Diggs signed a hospital consent form authorizing treatment by her physician and “the anesthetist/anesthesiologist responsible for this service,” without a clear disclosure that anesthesia providers were independent contractors.
- Diggs sued multiple defendants and sought to impose vicarious liability on Novant-related entities and Forsyth Memorial Hospital, Inc. (FMH) for alleged nursing negligence and anesthesia negligence.
- The trial court granted summary judgment to the Novant-related entities and FMH on Diggs’s vicarious liability claims.

## Issues

1. Whether the evidence supported imposing vicarious liability on Novant Health, Inc. (NHI) or Novant Health Triad Region, L.L.C. (NHTR) for the alleged negligence.
2. Whether Diggs’s nursing expert was competent under North Carolina Rule of Evidence 702, such that her testimony could defeat FMH’s summary judgment motion on nursing-negligence-based claims.
3. Whether FMH could be vicariously liable for negligence by independent-contractor anesthesia providers under theories of actual agency or apparent agency.

## Decision

- Summary judgment for NHI and NHTR was affirmed because Diggs did not establish a basis to impute liability to those entities.
- Summary judgment for FMH on claims based on nursing negligence was reversed because Diggs’s nursing expert testimony was admissible under Rule 702, creating genuine issues of material fact.
- Summary judgment for FMH on claims based on anesthesia negligence was:
  - affirmed as to actual agency (insufficient evidence of actual agency/control), but
  - reversed as to apparent agency (genuine issues of material fact existed).
- The case was remanded for further proceedings against FMH on nursing-negligence-based claims and anesthesia-negligence-based claims premised on apparent agency.

## Legal Principles

- Summary judgment is improper when admissible expert testimony creates a genuine dispute of material fact on standard of care and breach in a medical negligence claim.
- Under N.C. R. Evid. 702, a nursing expert may testify if qualified by knowledge, skill, experience, training, or education; challenges going only to competency may fail where the qualifications meet the rule.
- Actual agency for vicarious liability requires evidence of a right of control or an employment/agency relationship; independent-contractor status weighs against actual agency.
- A hospital may face vicarious liability for independent-contractor medical providers under apparent agency where the hospital holds the providers out as its agents and the patient reasonably relies on that appearance in accepting treatment.

## Conclusion

The court left intact summary judgment for the Novant-related entities but reinstated Diggs’s claims against FMH because her nursing expert was competent to testify and because a jury could find that the anesthesia providers acted with apparent authority attributable to the hospital, even though actual agency was not shown.


Diggs v. Novant Health, Inc., 177 N.C. App. 290, 628 S.E.2d 851 (N.C. Ct. App. 2006)