Hohenthal v. Smith, 72 App.D.C. 343, 114 F.2d 494 (D.C. Cir. 1940); Adams v. Leidholt, 579 P.2d 618 (Colo. 1978); Bernardi v. Community Hospital Association, 166 Colo. 280, 443 P.2d 708 (1968); Davis v. Trobough, 139 Mont. 322, 363 P.2d 727 (1961); Stumper v. Kimel, 108 N.J. Super. 209, 260 A.2d 526 (1970), cert. denied, 55 N.J. 589, 264 A.2d 526 (1970), see also Barrette v. Hight, 353 Mass. 268, 230 N.E.2d 808 (1967). We agree with and follow these decisions.
Moreover, plaintiffs' expert acknowledged that Schwartz acted within the accepted standards of medical care in instructing Kuxhaus to call Walsh with the information about the imaging study and also, in trusting Kuxhaus to do so. See Stumper v. Kimel, 108 N.J. Super. 209, 213 (App. Div.), certif. den., 55 N.J. 589 (1970) (holding "a surgeon rendering post-operative care to a patient is not liable for the negligence of a hospital-employed resident physician, when the orders given . . . [are] the accepted medical [and hospital] standard of practice."). Defendants' argument that Schwartz should step into the shoes of AHS as special employer fails as a matter of law and lacks sufficient support in the evidence, even to create an issue that required resolution by the jury.
Finally, plaintiff also tried the case as if the borrowed servant-employee rule or vicarious liability applied. See Stumper v. Kimel, 108 N.J. Super. 209 (App.Div. 1970), certif. den. 55 N.J. 589 (1970).