Who is an agency nurse's employer for purposes of liability?




Those of you who work as an agency nurse know all too well the ins and outs of that role. Some of you may work at a particular facility on a particular unit for weeks or months at a time. In contrast, some of you may work at a different facility every few days.

In the following case, who the employer was for a group of nurses assigned to the same facility and the same units for an extended period of time became a legal issue, after a patient injury occurred. (Ruelas v. Staff Builders Personnel Services, Inc., 18 P. 3d 138 (2001))  

The patient was being cared for at a healthcare center and was allegedly abused by two agency nurses while receiving an enema. The patient sued the staffing agency, alleging vicarious liability, punitive damages and negligent hiring/retention. The trial court granted a Summary Judgment Motion in favor of the staffing agency (holding there was no genuine material issue of fact surrounding the allegations).

The patient filed an appeal and the appeals court affirmed the lower court decision because the staff nurses were under the control of the healthcare center and not the staffing agency. In addition, the appeals court decided that the facts did not support the negligent hiring/retention claim against the staffing agency. In doing so, the court carefully supported its decision.

The court analyzed the “lent employee” doctrine, which states that a general employer is vicariously liable for any tortious conduct (i.e., negligence) of a lent employee only if the general employer has control of or the right to control the performance of the lent employee’s work. In this case, the staffing agency had no control over the lent nurse employees’ care to patients. The healthcare center informed the agency nurses of their responsibilities, supervised these nurses as it did their own nurse employees, informed the staffing agency if they did not want certain nurses to work at the health center, provided the equipment for patient care, provided information to the agency for the purposes of the nurses’ evaluations, and informed the agency when discipline or termination was required of the nurses from the agency.

“The patient was being cared for at a healthcare center and was allegedly abused by two agency nurses while receiving an enema. The patient sued the staffing agency, alleging vicarious liability, punitive damages and negligent hiring/retention.”

In short, the only control the nurse staff agency had over its nurses was over administrative responsibilities, such as ensuring the nurses were licensed and competent, paying the nurses, providing workers’ compensation and orienting them to the health center’s expectations.

The court also held that because there was no joint control between the healthcare center and the nurse staffing agency, punitive damages could not be assessed against it and upheld the Summary Judgment Motion of the lower court on that claim.

Likewise, the patient’s allegations of negligent hiring by the agency could not be supported by the evidence presented at the lower court proceedings. The agency had been bought by the current owner 11 days before the abuse occurred. The new owner had not hired the agency nurses and did not assume any liability of the prior owner related to hiring its nurses.

The case has implications for those of you who work for a staffing agency. First and foremost, it is essential that you read the contract you sign with your agency for all of its components, but specifically for who is your employer. For instance, if the agency retains control over such things as your evaluations, intervenes for you with a facility when problems or patient care disagreements arise and decided when to terminate you, the agency is probably your employer.

If, in contrast, the facility to which you are assigned takes over these duties, then the facility may be seen as your employer under the contract and under the applicable laws of the state in which you work.

What these mean, in reality, is if you are named in a suit for a patient injury, you may be sitting next to the facility’s representatives, rather than the nurse staffing agency, in the courtroom.

The case also illustrates the importance of providing non-negligent care to patients regardless of who your employer is. In addition, when there is a concern about patient care, you need to inform both the facility and the agency about your concerns, regardless of what the contract states. This allows you to fulfill your duty to report concerns about patient care and involve all entities that surround your work at the facility to get the patient the care he or she needs.

Patient care advocacy, providing non-negligent care and ensuring you are protecting your nursing practice are important regardless of what a contract might say about the issues discussed in this case and any others that may arise.

If you have worked as an agency nurse, did you experience any  confusion about who your employer was? What other issues did you have concerns about?

Aside from who the employer was in this case, what additional legal options might be available to this particular patient?

Nancy Brent’s posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state.  Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

Read other columns by Nancy Brent:

How practicing good interpersonal skills aids patient outcomes
Workplace safety a must for nurses

About the author
Nancy J. Brent, MS, JD, RN

Nancy J. Brent, MS, JD, RN 

Nancy J. Brent, MS, JD, RN, Nurse.com's legal information columnist, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. To ask Nancy a question, email BrentsLaw@nurse.com.

4 responses to “Who is an agency nurse’s employer for purposes of liability?”

  1. I have worked as an agency nurse in the past, and there was never any confusion about who my employer was. I clearly understood that the staffing agency who HIRED me was my employer. Period. Irregardless of who the employer is, nurses are solely responsible for themselves. My only concern was not having enough malpractice insurance to cover my hind end if I were ever convicted of negligence etc., I feel the patient should file a complaint with the nursing board in their state, and let the board investigate the allegations and go from there.

  2. I too have worked as an agency nurse and at no time did I not understand that the agency was my employer. I have always carried my own insurance as well. I just pray that if there ever is an incident that my insurance would cover it.

  3. I too have worked for an agency and never wondered who my employer was. The agency was my employer, and I always carried and still do have my own insurance should the need ever arise and pray that I am covered sufficiently.

  4. The Veterans Administration hire intermittent RNs and they are not represented by the union. What recourse does the intermittent nurse who is an employee of the Federal Government have when there is an unfair labor issue.

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