Court: Staffing agency is not liable for nurse's negligence

Listen to this article

A staffing agency may be liable for the negligence of one of its nurses.

However, the Wisconsin Court of Appeals has determined that any suit premised on such negligence may not be brought in tort, seeking contribution. Instead, it must be brought in contract, seeking indemnification.

According to the court’s March 5 opinion, Alex Rogers was injured during his birth at Aurora Health Care, and his parents brought a malpractice suit against Aurora and two of its physicians.

The hospital’s insurer, The Medical Protective Company (MedPro), filed a contribution action against American Casualty Company, the insurer for Cross-Country Staffing.

Cross-Country Staffing supplied Aurora with nurses, one of whom, according to MedPro, was negligent in the Rogers’ birthing.

The contract between Aurora and Cross-Country provided that Cross-Country agrees to indemnify Aurora from claims and liabilities rising out of the acts or omissions of Cross-Country.

Washington County Circuit Court Judge David C. Resheshke granted summary judgment in favor of American Casualty, and the Court of Appeals affirmed, in a decision by Judge Richard Brown.

The court concluded that MedPro could not assert a direct action against American Casualty, as the insurer of Cross-Country, because any action against them lies in contract, rather than tort.

Under Wisconsin’s medical malpractice statutes, contained in Chapter 655, only a nurse anesthetist is included within the definition of “health care provider”; the nurse in this case was not a nurse anesthetist.

Therefore, relying on Patients Compensation Fund v. Lutheran Hospital-La Crosse, Inc., 223 Wis.2d 439, 588 N.W.2d 35 (1999), the court concluded that any negligence on the nurse’s part must be imputed to a health care provider — here Aurora. Lutheran Hospital holds that a health care provider may not bring an action for contribution against a party that does not independently qualify as a health care provider.

Wisconsin’s statute allowing a direct action against an insurer, sec. 632.24, only permits suits alleging negligence; it does not allow a plaintiff in a contract action to sue the defendant’s insurer. Accordingly, the court held that MedPro could not file a direct action seeking contribution from Cross-Country’s insurer, either.

The court suggested that MedPro could seek indemnification from Cross-Country, however.

The court wrote, “Aurora is entitled to re-cover from Cross-Country for breach of contract.

If Aurora (or MedPro acting as Aurora’s subrogee) wishes to pursue a contractual action against Cross-Country, it is obligated to sue Cross-Country. It does not have the right to sue American Casualty, Cross-Country’s insurer.”

Since no contract claim was before the court, it declined to express any opinion on the merits of such a claim, or on American Casualty’s duty to defend such a claim.

Suffice it to say that, if a health care provider seeks to recover some of the money it loses in a malpractice action, claiming negligence on the part of a nurse supplied by a staffing agency, it cannot accomplish that by seeking contribution based on the nurse’s negligence.

Rather, it must file suit in contract, seeking indemnification.