BORROWED SERVANT DOCTRINE

Definition
Ordinarily, resident physicians, nurses and other personnel of the hospital are employees or
servants of the hospital.In some instances, they are under the temporary supervision and control of
another other than their employer while performing their duties.By fiction of law, they are deemed
borrowed from the hospital by someone and for any wrongful act committed by them during the period,
their temporary employer must be held liable for the discharge of their acts and duties. In the
determination whether one is a borrowed servant, it is necessary that he is not only subjected to the
control of another with regard to the work done and the manner of performing it but also that the work to
be done is for the benefit of the temporary employer.
The common law principle that the employer of a borrowedemployee, rather than the employee's regular
employer, is liable for the employee's actions that occur while theemployee is under the control of the tem
porary employer. Sometimes referred to as borrowed employee doctrine.
In the case of ROGELIO P. NOGALES, versus CAPITOL MEDICAL CENTER G.R. No. 142625,
December 19, 2006, on the liability of the other respondents, the Court of Appeals applied the "borrowed
servant" doctrine considering that Dr. Estrada was an independent contractor who was merely exercising
hospital privileges. This doctrine provides that once the surgeon enters the operating room and takes
charge of the proceedings, the acts or omissions of operating room personnel, and any negligence
associated with such acts or omissions, are imputable to the surgeon. While the assisting physicians and
nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary
servants or agents of the surgeon in charge while the operation is in progress, and liability may be
imposed upon the surgeon for their negligent acts under the doctrine of respondeat superior.
In relation to the above paragraph, under the doctrine of respondeat superior, a master is liable for
injuries or damage to the person or property of third persons resulting from the acts of the masters
servant if the acts of the servant are within the scope of the servants employment. Several rationales
have been asserted to justify the imposition of vicarious liability on the master:
(1)
Liability tends to provide a spur toward careful selection, training and supervision of employees;
(2)
Since the employer receives the benefits of the activities of the enterprise, he should also bear its
burdens;
(3)
Liability increases the likelihood of accident victims receiving compensation -- the deep pocket
approach; and
(4)
Liability will result in broad and equitable distribution of the cost of accidents.
Determination
The general test for determining whether a servants act is within the scope of employment is:
Conduct of a servant is within the scope of employment if, but only if:
(a)
it is of the kind he is employed to perform;
(b)
it occurs substantially within the authorized time and space limits;
(c)
it is actuated, at least in part, by a purpose to serve the master; and
(d)
if force is intentionally used by the servant against another, the use of force is not
unexpectable by the master
In Application: Hospital Setting
A hospital is a place apt to receive persons who injured or sick not only physically but also
psychologically, to which the latter may seek treatment and interventions. Hospital may either be public,
similar to those controlled by the government or its officers or agencies or private such those founded and
maintained by private persons or a corporation. Hospitals need not be incorporated; as such they may be
created by the disposition of benevolent individuals in which the purposes and powers are then declared
by way of trusts in the instrument of their creation.
Generally, in the absence of any statutory provision to the contrary, a hospital created and
existing for purely governmental purposes and under the exclusive ownership and control of the
government, or any of its subdivision, is not liable for the negligence or misconduct of its employees. For
the reason that hospitals of the like are held to be governmental agencies brought being to aid in the
performance of the public duty of protecting society. Furthermore, private hospitals are also not hel liable
for the negligence of their physician. The reasoning is, however, different from the former. It is because of

the traditional notion that of the physicians professional status and the very nature of their calling which
precludes them from being classed as an agent or employee of a hospital, whenever he acts in a
professional capacity.
However, this traditional view has yielded because of the modernization in the practice of
medicine. Hospitals nowadays have become the core for healing and treatment. This may be associated
to the emergence of facilities and specialized care being available which enables medical practitioners to
provide full the needs of the patients.
Nowadays, hospitals that are private in nature may be held liable to patients for the negligence of
their servants. American law recognizes that not only the medical practitioners and healthcare providers
but also hospitals, as masters, have a duty to exercise that degree of care, skill, and diligence used by
hospitals in the community, and required by the express or implied contract of undertaking. Here in the
Philippines, there is already an emerging trend that justifies the imputation of liability in private hospitals.