STATHAM v. QUANG

915 S.E.2d 864, 321 Ga. 533

• Court: Supreme Court of Georgia
• Decided: May 13, 2025
• Docket: S24G0842
• Status: Published

Opinion

321 Ga. 533 FINAL COPY

S24G0842. STATHAM v. QUANG et al.

COLVIN, Justice.

We granted certiorari in this case to determine whether

physicians who supervised a medical student during a surgery could

be held vicariously liable for any negligent acts or omissions that the

medical student may have committed during the procedure, under

OCGA § 51-1-38, general agency principles, or the borrowed servant

doctrine. The trial court granted partial summary judgment to the

defendants, summarily concluding that they could not be held

vicariously liable for the medical student’s negligence. And a divided

panel of the Court of Appeals affirmed, with the lead opinion, which

was not joined by either of the other two judges on the panel,

concluding that OCGA § 51-1-38 did not impose vicarious liability

on the defendant physicians, and that, based on the evidence

presented on summary judgment, the defendant physicians could

not be held vicariously liable under general agency principles or the borrowed servant doctrine. See Statham v. Quang, 371 Ga. App. 55,

59-61 (a)-(c) (899 SE2d 275) (2024).

As we explain below, we agree with the Court of Appeals’ lead

opinion that OCGA § 51-1-38 (a statute that immunizes medical

students from civil liability under certain circumstances) did not

provide a basis for holding the defendant physicians vicariously

liable. We also agree with the lead opinion’s ultimate conclusion that

the defendant physicians could not be held vicariously liable under

the borrowed servant doctrine, albeit for different reasons than

those expressed in the Court of Appeals’ lead opinion. As we explain

below, the defendant physicians could not be held vicariously liable

under the borrowed servant doctrine because that doctrine operates

as a defense to a claim of vicarious liability under the doctrine of

respondeat superior, not as an independent basis for imposing

vicarious liability on a defendant. But we disagree with the lead

opinion’s conclusion that, as a matter of law, the defendant

physicians could not be held vicariously liable for the medical

student’s negligence under general agency principles. As explained

2 below, under the doctrine of respondeat superior, a general principle

of agency law, a physician can be vicariously liable for the negligent

acts or omission of a medical student under his supervision if the

evidence shows that, when the injury occurred, the medical student

was acting as the physician’s “servant” in furtherance of the

physician’s goals and within the scope of the physician’s business.

And because genuine issues of material fact remain regarding

whether the defendant physicians were vicariously liable under the

doctrine of respondeat superior for any negligence committed by the

medical student, we reverse the Court of Appeals’ judgment

affirming the trial court’s grant of partial summary judgment to the

defendants on the issue of vicarious liability.

1. After Plaintiff Jacqueline Statham suffered injuries during

a hysterectomy, she sued the physician who performed the surgery

(David S. Quang, D.O.), the physician who assisted in the surgery

(Tan-Loc Nguyen, M.D.), and the defendant physicians’ medical

practice (Women’s Healthcare of Middle Georgia, P.C.) (collectively,

“Defendants”). In her second amended complaint, Plaintiff alleged

3 that the negligence of a medical student, who assisted in Plaintiff’s

surgery by manipulating a sponge stick under the supervision of the

defendant physicians, resulted in the defendant physicians

improperly cutting her rectal wall. And according to Plaintiff, that

injury later developed into a “rectovaginal fistula” that caused fecal

matter to enter her vagina and required further medical

intervention. Based on these allegations, Plaintiff asserted claims

against Defendants for professional negligence, negligent

supervision of the medical student, and vicarious liability for any

negligence committed by the medical student.

The parties filed cross-motions for partial summary judgment

on the issue of vicarious liability. Plaintiff argued that, under

general principles of agency law and the borrowed servant doctrine,

the defendant physicians were vicariously liable for any negligence

committed by the medical student. And Defendants argued that

they could not be held vicariously liable under general agency

4 principles, the borrowed servant doctrine, or OCGA § 51-1-38.1

On summary judgment, the following facts were undisputed.

On August 12, 2019, Dr. Quang performed “a total laparoscopic

hysterectomy with left salpingo-oophorectomy” on Plaintiff. During

the procedure, Dr. Nguyen assisted Dr. Quang. And a medical

student, who was a student at Philadelphia College of Osteopathic

Medicine (“PCOM”), assisted the defendant physicians. The medical

student’s role in the procedure was to insert a sponge stick into

Plaintiff’s vagina as directed by Dr. Quang and to maneuver the

sponge stick as directed by the defendant physicians in order to lift

Plaintiff’s bladder up, help the defendant physicians visualize

Plaintiff’s anatomy, and help guide Dr. Quang to the appropriate

location for incision. The defendant physicians visually confirmed

that the medical student had initially inserted the sponge stick into

Plaintiff’s vagina. But at some point during the procedure, the

medical student removed the sponge stick from Plaintiff’s vagina

1 Defendants also moved for summary judgment on Plaintiff’s claim for

negligent supervision. The trial court denied that motion, and the negligent supervision claim is not at issue on appeal. 5 and placed it in Plaintiff’s rectum, which made Plaintiff’s injury

“more likely.”

The evidence submitted on summary judgment also included a

written contract (the “Agreement”) between the medical student’s

school, PCOM (the “School”), and the defendant physicians’ medical

practice, Women’s Healthcare of Middle Georgia (the “Host

Agency”). Under the Agreement, the Host Agency agreed to provide

“hands on” “clerkship[s]” for the School’s third- and fourth-year

medical students in exchange for the School paying the Host Agency

$4,000 for each fully completed “clerkship.” The Agreement provided

that the Host Agency would provide students “access to patients at

Host Agency facilities in an appropriately supervised environment,”

that the School would “advise students that they [were] required to

comply with Host Agency rules, regulations, and procedures,” that

the Host Agency would “retain full authority and responsibility for

patient care and quality standards,” and that students were

prohibited from “render[ing] unsupervised patient care and/or

services.”

6 The Agreement further provided that the Host Agency had the

authority to terminate a student’s participation in a patient’s

procedure, stating that “[t]he Host Agency will resolve any situation

in favor of its patients’ welfare and restrict a student to the role of

observer when a problem may exist until the incident can be

resolved by the staff in charge of the student or the student is

removed,” and that the “Host Agency may immediately remove [the

student] from the premises.” And the Agreement provided that both

the School and the Host Agency reserved rights to terminate a

student’s participation in the clerkship program, stating that the

“Host Agency . . . retains the right to suspend or terminate any

student’s participation at the Host Agency,” and that “[t]he [School]

may terminate a student’s participation when, in its sole discretion,

it determines that further participation by the student would no

longer be appropriate.”

Under a section titled “Employment Disclaimer,” the

Agreement stated:

The students participating in the program will not be

7 considered employees or agents of the Host Agency or [School] for any purpose. Students will not be entitled to receive any compensation from Host Agency or [School] or any benefits of employment from Host Agency or [School], including but not limited to, health care or workers’ compensation benefits, vacation, sick time, or any other benefit of employment, direct or indirect. Host Agency will not be required to purchase any form of insurance for the benefit or protection of any student of the School.

A section of the Agreement titled “No Agency Relationship Between

the Parties” stated that “[n]othing in this Agreement is intended to

or shall be construed to constitute or establish an agency . . .

relationship between the parties.” And with respect to third parties,

the Agreement stated that “neither party intends for this

[Agreement] to alter in any way its respective legal rights or its legal

obligations to any third party.”

The trial court summarily denied Plaintiff’s motion for partial

summary judgment on the issue of vicarious liability and granted

Defendants’ cross-motion for partial summary judgment on that

issue, stating only that “as a matter of law [Defendants] are not

vicariously liable for any acts or omissions of the medical student.”

8 The Court of Appeals affirmed the trial court’s ruling. See Statham,

371 Ga. App. at 62 (d). But it did so without a majority opinion, as

the lead opinion was not joined by either of the other two judges on

the panel, one of whom concurred in the judgment only, and the

other of whom concurred in part on different grounds and dissented

in part. See id. (Markle, J., authoring the lead opinion, Brown, J.,

concurring in judgment only, McFadden, P. J., concurring in part on

different grounds and dissenting in part).

We granted certiorari to determine whether the Court of

Appeals erred in concluding on summary judgment that, as a matter

of law, Defendants could not be held vicariously liable for any

negligent acts or omissions that the medical student may have

committed. And at oral argument, Plaintiff clarified that she

challenges only the trial court’s grant of partial summary judgment

to Defendants on the issue of vicarious liability, not the trial court’s

denial of her own motion for partial summary judgment on that

issue. Accordingly, we limit the scope of our review to the grant of

partial summary judgment to Defendants and do not address

9 whether the Court of Appeals and trial court erred in denying

Plaintiff’s corresponding cross-motion for partial summary

judgment.

2. To prevail on a motion for summary judgment, the moving

party must “show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter

of law.” OCGA § 9-11-56 (c). In assessing whether a genuine issue of

material fact exists, a court must view the evidence presented on

summary judgment “in the light most favorable to the nonmoving

party.” Jones v. City of Atlanta, 320 Ga. 239, 249 (III) (908 SE2d 519)

(2024) (citation and punctuation omitted). We review summary

judgment rulings de novo. See id.

Here, the Court of Appeals’ lead opinion concluded that

Defendants were entitled to partial summary judgment to the extent

that Plaintiff sought to impose vicarious liability on them under

OCGA § 51-1-38, general agency principles, or the borrowed servant

doctrine. See Statham, 371 Ga. App. at 59-61 (a)-(c). We consider

each of these rulings in turn.

10 (a) We begin by addressing the Court of Appeals’ interpretation

of OCGA § 51-1-38, which provides:

(a) No student who participates in the provision of medical care or medical treatment under the supervision of a medical facility, academic institution, or doctor of medicine, as a part of an academic curriculum leading to the award of a medical degree, shall be liable for any civil damages as a result of any act or omission in such participation, except for willful or wanton misconduct. (b) Subsection (a) of this Code section shall not be construed to affect or limit the liability of a medical facility, academic institution, or doctor of medicine.

OCGA § 51-1-38 (a), (b). Based on the plain language of the statute,

the Court of Appeals’ lead opinion concluded that subsection (b) of

the statute “clearly does not impose vicarious liability on the

surgeons for the student’s alleged negligence.” Statham, 371 Ga.

App. at 61 (c). We agree.

When interpreting a statute, we “examine the statute’s plain

language” and read that language “in its most natural and

reasonable way, as an ordinary speaker of the English language

would.” Smith v. State of Ga., 319 Ga. 352, 361 (3) (a) (903 SE2d 878)

(2024) (citation and punctuation omitted). “In doing so, we presume

11 that the General Assembly meant what it said and said what it

meant, and we view the statutory text in the context in which it

appears.” Id. (citation and punctuation omitted). “When . . .

statutory text is clear and unambiguous, our interpretive task

begins and ends with the text itself.” State v. Arroyo, 315 Ga. 582,

584 (883 SE2d 781) (2023).

Here, the clear and unambiguous text of OCGA § 51-1-38

neither imposes vicarious liability on physicians for the conduct of

medical students under their supervision, nor renders physicians

immune from vicarious liability for medical students’ conduct. The

plain language of subsection (a) — which states that “[n]o student

. . . shall be liable for any civil damages” resulting from certain acts

or omissions committed while “participat[ing] in the provision of

medical care or medical treatment” — exempts medical students

from civil liability when they provide medical care under the

particular circumstances set out in the statute. OCGA § 51-1-38 (a).

And the plain language of subsection (b) — which states that

“[s]ubsection (a) . . . shall not be construed to affect or limit the

12 liability of a medical facility, academic institution, or doctor of

medicine” — simply states that the exemption from liability for

medical students in subsection (a) has no impact on the liability of a

medical facility, academic institution, or physician who supervises a

medical student when providing medical care. OCGA § 51-1-38 (b).

Thus, while the statute exempts medical students from liability for

their own acts or omissions under certain circumstances, the statute

provides that supervising physicians remain liable as otherwise

provided by law. See Gilbert v. Richardson, 264 Ga. 744, 753-754 (7)

(452 SE2d 476) (1994) (“Under the doctrine of respondeat superior,

a principal has no defense based on an agent’s immunity from civil

liability for an act committed in the course of employment.”).

(b) We now turn to whether Georgia law provides another basis

for holding a physician who supervises a medical student during a

medical procedure vicariously liable for the medical student’s

negligence. In this case, Plaintiff claimed that the defendant

physicians were vicariously liable for the medical student’s

negligence under two related doctrines — the doctrine of respondeat

13 superior and the borrowed servant doctrine. We therefore briefly

describe the nature and operation of these doctrines before

addressing the Court of Appeals’ application of the doctrines to the

evidence presented on summary judgment.

(i) (A) Georgia law has long recognized “[t]he common-law

doctrine of respondeat superior, which is also known as the ‘master-

servant’ rule.” Prodigies Child Care Mgmt. v. Cotton, 317 Ga. 371,

376 (2) (a) (893 SE2d 640) (2023); OCGA § 51-2-2 (“Every person

shall be liable for torts committed by . . . his servant by his command

or in the prosecution and within the scope of his business . . . .”). As

we have explained, the doctrine of respondeat superior allows a

plaintiff to “hold a principal [vicariously] responsible for the

negligent conduct of an agent committed in furtherance of the

principal’s goals and within the scope of the principal’s business.”

Doe v. Saint Joseph’s Catholic Church, 313 Ga. 558, 565 (2) (b) (870

SE2d 365) (2022). But an agent’s negligence can be imputed to a

principal under the doctrine of respondeat superior only if the agent

qualifies as a “servant” of the principal, as opposed to, for example,

14 an “independent contractor.” Compare OCGA § 51-2-2 (making a

principal liable for the torts of his “servant”), with OCGA § 51-2-4

(providing that a principal “generally is not responsible for torts

committed by his employee when the employee exercises an

independent business”), and Peachtree-Cain Co. v. McBee, 254 Ga.

91, 91 (1) (327 SE2d 188) (1985) (“OCGA § 51-2-4 is a codification of

the original common law rule of the nonliability of an employer for

the torts of an independent contractor.”).

Under Georgia law, a master-servant relationship exists only

where a principal has a significant degree of control over how an

agent performs his work, see Farmer v. Ryder Truck Lines, 245 Ga.

734, 737-738 & n.2 (266 SE2d 922) (1980), because the principal’s

control over his agent’s work serves as a primary justification for

holding the principal liable not just for his own conduct but for that

of his agent, see Peachtree-Cain, 254 Ga. at 91 (1) (noting that “the

proper party to be charged with the responsibility for preventing the

risk, and administering and distributing it,” is the person who has

the “right of control over the manner in which the work is to be

15 done”). And whether a master-servant relationship exists is

generally a factual question for the jury to decide based on all the

relevant evidence. See Ambling Mgmt. Co. v. Miller, 295 Ga. 758,

762-763 (2) (764 SE2d 127) (2014) (noting that “whether a [person]

is acting in the capacity as a servant . . . is generally a question for

the jury based on all evidence provided”); Farmer, 245 Ga. at 738-

739 (noting that several “pertinent factors” may be relevant in

determining whether an agent is a servant).

A principal has a sufficient degree of control over an agent to

establish a master-servant relationship if the principal either

“controls or has the right to control the physical conduct of the

person employed in the performance of th[e] services.” Farmer, 245

Ga. at 737 n.2. And determining whether the principal had that

degree of control over an agent when the injury occurred generally

requires consideration of whether the principal assumed control

over, or had the right to control, “the time, manner, and method of

executing the work.” Id. at 738 (distinguishing “the right to control

the time, manner and method of executing the work,” which

16 describes a master-servant relationship, from the mere “right to

require certain results”); RBF Holding Co. v. Williamson, 260 Ga.

526, 526 (397 SE2d 440) (1990) (noting that determining whether a

person is a servant turns on whether the employer had “the right to

direct the time, the manner, the methods, and the means of the

execution of the work” (citation and punctuation omitted)).2

(B) “There are instances, under Georgia law, where one may be

the servant of two masters.” Hoffman v. Wells, 260 Ga. 588, 590 (2)

n.2 (397 SE2d 696) (1990). See United States Fidelity & Guar. Co. v.

Forrester, 230 Ga. 182, 184-185 (196 SE2d 133) (1973) (“Ordinarily,

one is not the servant of two masters, but the courts of this State

have recognized the principle that one may be the servant of two

masters and subject to the demands of both or either.” (citation and

2 See also OCGA § 51-2-4 (providing that an employer may be held responsible for torts committed by a person who would ordinarily be classified as an independent contractor if the person, like a servant, is “subject to the immediate direction and control of the employer”); OCGA § 51-2-5 (5) (“An employer is liable for the negligence of [an independent] contractor . . . [i]f the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant . . . .” (emphasis supplied)). 17 punctuation omitted)). And when it is necessary to determine

whether an agent was acting as a servant of one master or another

on a particular occasion — a situation that often arises “in the

context of the tort doctrine of respondeat superior,” as well as when

determining whether an agent qualifies as an “‘employee’ for

purposes of the workers’ compensation statute” — we have relied on

what is referred to as the “borrowed servant rule” or the “borrowed

servant doctrine.” Summerlin v. Ga. Pines Community Svc. Bd., 286

Ga. 593, 596 (2) (690 SE2d 401) (2010).

In the respondeat superior context, where “vicarious liability

for the acts of servants depends upon the master’s right of control

over the acts of the servants,” the borrowed servant doctrine

addresses the fact that a servant may have more than one master as

a result of being loaned from one employer to another, but that both

masters rarely “have control over the actions of the [servant] at the

same time.” Hoffman, 260 Ga. at 589-590 (2). As we have explained,

the “borrowed servant” doctrine is a “widely recognized exception to

the doctrine of respondeat superior,” under which a master (often

18 referred to as a “general master”) who “lends his servants to

another” master (often referred to as a “special master”) “is not

responsible for any negligence of the servant committed within the

scope of his employment by the other.” Hoffman, 260 Ga. at 589 (2).

See also Summerlin, 286 Ga. at 596 (2) (noting that we had held that

the “borrowed servant rule is [an] exception to [the] tort doctrine of

respondeat superior”); Six Flags Over Ga. v. Hill, 247 Ga. 375, 377

(1) (276 SE2d 572) (1981) (referring to an employer who lends an

employee to another as the “general master,” and referring to an

employer who borrows the employee as the “special master” (citation

and punctuation omitted)).

We have explained that, as a general matter, a general

master’s agent should be considered a “borrowed servant” of a

special master if, on the occasion when an injury occurred, (1) “the

special master had complete control and direction of the servant for

the occasion,” (2) “the general master had no such control,” and (3)

“the special master had the exclusive right to discharge the servant.”

Tim’s Crane & Rigging v. Gibson, 278 Ga. 796, 797-798 (604 SE2d

19 763) (2004) (quoting Six Flags Over Ga., 247 Ga. at 377 (1)). See Six

Flags Over Ga., 247 Ga. at 377 (1) (explaining that courts must focus

on the specific “occasion when the injury occurred” in assessing

whether the borrowed servant doctrine’s requirements are

satisfied). And we have established specific rules for applying the

borrowed servant doctrine in cases where a hospital seeks to avoid

vicarious liability for the negligence of a hospital employee working

under a physician’s supervision. See Ross v. Chatham County Hosp.

Auth., 258 Ga. 234, 235 (1) (367 SE2d 793) (1988) (explaining that a

“hospital which seeks to escape liability must show that” (1) “it has

yielded control of its employees who are assisting in a surgical

procedure,” (2) “the employees whose negligence the hospital seeks

to impute to the surgeon are under the immediate supervision of the

surgeon,” and (3) the task which the employee allegedly performed

in an allegedly negligent manner was one “involving professional

skill and judgment,” as opposed to a “clerical or administrative

task[ ] not requiring the exercise of medical judgment” (citation and

punctuation omitted)).

20 (ii) As applied to this case, the above legal principles establish

two conditions that must be satisfied in order for Plaintiff to hold

the defendant physicians vicariously liable under the doctrine of

respondeat superior for any negligence committed by the medical

student. First, Plaintiff must show that, when the injury occurred,

the medical student was acting “in furtherance of the [defendant

physicians’] goals and within the scope of [their] business.” Saint

Joseph’s Catholic Church, 313 Ga. at 565 (2) (b). See also Quynn v.

Hulsey, 310 Ga. 473, 474 n.2 (850 SE2d 725) (2020) (“[T]he test to

determine if the master is liable [under the doctrine of respondeat

superior] is whether or not the servant was at the time of the injury

acting within the scope of his employment and on the business of the

master.” (citation and punctuation omitted)). Second, Plaintiff must

show that, when the injury occurred, the medical student was acting

in her capacity as a “servant” of the defendant physicians by

establishing that the defendant physicians either “ha[d] the right to

control the [medical student’s] physical conduct” in executing the

work or assumed “control[ ]” over the medical student’s “physical

21 conduct” in executing the work. Farmer, 245 Ga. at 737 n.2. And in

assessing the defendant physicians’ degree of control over the

medical student, “pertinent factors” include whether the defendant

physicians controlled or had the right to control “the time, manner,

and method of executing the work.” Id. at 738.

On summary judgment, Defendants did not dispute that the

evidence, when viewed in the light most favorable to Plaintiff,

showed that the first condition was satisfied — that the medical

student was assisting the defendant physicians in achieving their

surgical goals within the scope of their business. Defendants argued

only that there was no genuine issue of material fact as to the second

condition — whether a master-servant relationship existed between

Defendants and the medical student. And they contended that the

Agreement between the medical school and the defendant medical

practice established as a matter of law that the medical student was

not an agent of Defendants.

In reviewing the trial court’s grant of partial summary

judgment to Defendants on the issue of vicarious liability, the Court

22 of Appeals’ lead opinion likewise focused on the second condition for

establishing vicarious liability under the doctrine of respondeat

superior. See Statham, 371 Ga. App. at 59-60 (a). Specifically, the

lead opinion asserted that “Georgia law is clear that[,] when

considering the relationship between parties, a written contract

controls the terms and scope of that relationship,” and, “where the

contract establishes the responsibility of the parties[,] it also

establishes whether the borrowed servant doctrine or other agency

principles apply.” Id. at 59 (a). And the lead opinion concluded that

“the clear and unambiguous terms” of the Agreement between the

medical student’s school and the defendant medical practice

established that there was no agency relationship between the

medical student and the defendant physicians because (1) the

Agreement “specified that the medical student was not considered

an employee or agent of the practice,” (2) the Agreement stated that

it did not “create any agency, employer/employee, or fiduciary

relationship between the parties,” (3) “[n]o compensation or

employment benefits from the practice were conferred on the

23 medical student” under the Agreement, and (4) the Agreement

vested both the medical school and the medical practice “with the

right to terminate the student’s participation in the program.” Id. at

59-60 (a).

The lead opinion was correct to consider the contract insofar as

it addressed the defendant physicians’ right to control the medical

student’s conduct during Plaintiff’s procedure. It has long been the

law of Georgia that a contract can give rise to a right of control over

an agent that can serve as an independent basis for concluding that

an agent was a principal’s servant, even when the principal did not

in fact assume control over the agent. See Golosh v. Cherokee Cab

Co., 226 Ga. 636, 637-638 (176 SE2d 925) (1970) (“‘The test to be

applied in determining whether the relationship of the parties under

a contract for the performance of labor is that of employer and

servant, or employer and independent contractor, lies in whether the

contract gives, or the employer assumes, the right to control the time,

manner and method of executing the work, as distinguished from

the right merely to require certain definite results in conformity to

24 the contract.’” (quoting Fidelity & Cas. Co. of New York v. Windham,

209 Ga. 592, 593 (74 SE2d 835) (1953)) (emphasis supplied)); Macon

News Printing Co. v. Hampton, 192 Ga. 623, 624-625 (15 SE2d 793)

(1941) (noting that determining whether an agent is a servant turns

on “whether the contract gives, or the employer assumes, the right to

control the time, manner, and method of executing the work”

(citation and punctuation omitted; emphasis supplied)). We have

also stated that a “‘contract between the parties is controlling as to

their responsibilities thereunder.’” Tim’s Crane & Rigging, 278 Ga.

at 798 (quoting Montgomery Trucking Co. v. Black, 231 Ga. 211, 213

(200 SE2d 882) (1973)). As a result, in cases where there is no

contention that a party in fact assumed control over an agent and a

contract speaks to which party had a right to control the agent, a

contract’s terms could be dispositive in determining whether a party

had the right to control the agent’s conduct. See id. (holding that,

because “the contract between [a general master] and [a special

master] explicitly set[ ] forth each requirement of the borrowed

servant doctrine” and allocated the “risk” between the general

25 master and the special master as to the “responsibility for the

negligence of [a] servant,” “[w]hether or not [the special master] ever

assumed any control or supervision of [an agent, the special master]

acquired the right to do so,” and thus the general master was not

liable for “any negligence of [the agent]” (citation and punctuation

omitted)); Blair v. Smith, 201 Ga. 747, 748 (41 SE2d 133) (1947)

(treating a contract as dispositive of whether a principal had a right

to control an agent because the plaintiff conceded that the principal

“did not assume control of the work specified in his contract with

[the agent]”), overruled on other grounds by Wright Assocs. v.

Rieder, 247 Ga. 496 (277 SE2d 41) (1981). And determining whether

a contract gives rise to a master-servant relationship requires

careful consideration of whether the contract grants a principal a

right of control that is sufficient to create such a relationship under

the legal standards set out above, not merely on whether the

contract says there is or is not such a relationship. See, e.g., Blair,

201 Ga. at 749-751 (analyzing whether a contract granted a

principal the “right to control the time, method, and manner of

26 executing the work”).

But here the Court of Appeals misapplied the law in focusing

exclusively on the contract presented on summary judgment and

treating it as dispositive of whether the defendant physicians could

be held vicariously liable under the doctrine of respondeat superior.

This is because, as explained above, a master-servant relationship

can exist where a principal either has a right to control an agent’s

conduct or assumes control over the agent’s conduct. While the

contract may have been relevant in determining whether the

defendant physicians had a right to control the medical student,

Plaintiff’s respondeat superior claim was not primarily based on the

defendant physicians’ right of control but instead on their

assumption of control over the medical student. And because the

defendant physicians could have assumed control over the medical

student even if they did not have a contractual right to do so, the

Court of Appeals’ lead opinion erred in treating the contract terms

as dispositive of whether the defendant physicians could be held

vicariously liable.

27 Here, setting aside whether the defendant physicians had a

contractual right to control the medical student and whether the

Agreement provided any support for an inference that the defendant

physicians assumed control over the medical student, the

undisputed evidence, when considered in the light most favorable to

Plaintiff, created a genuine dispute of material fact as to whether

the defendant physicians assumed control over the medical

student’s physical conduct during Plaintiff’s surgery. Specifically,

the undisputed evidence showed that the defendant physicians

instructed the medical student to insert the sponge stick into

Plaintiff’s vagina, visually confirmed that the medical student’s

initial insertion was proper, and directed the medical student to

manipulate the sponge stick as necessary during the surgery.

Because a plaintiff need only show a sufficient group of “pertinent

factors” to establish the existence of a master-servant relationship,

Farmer, 245 Ga. at 738, and because this undisputed evidence could

support a finding that the defendant physicians assumed control

over the manner and method of the medical student’s work, whether

28 the medical student was acting as the defendant physicians’ servant

during Plaintiff’s procedure is a jury question that cannot be decided

as a matter of law on summary judgment, see Ambling Mgmt., 295

Ga. at 762-763 (2).3 Accordingly, the Court of Appeals erred in

affirming the trial court’s grant of partial summary judgment to

Defendants on the issue of vicarious liability.4

3 In analyzing the evidence presented on summary judgment, the Court

of Appeals’ lead opinion emphasized that the defendant practice did not pay the medical student for her labor. See Statham, 371 Ga. App. at 59-60 (a) (“No compensation or employment benefits from the practice were conferred on the medical student[.]”). To the extent that the lead opinion treated that fact as dispositive, it erred because payment is not a prerequisite to establishing a master-servant relationship. See Fidelity & Cas. Co. of New York, 209 Ga. at 594 (noting that “[p]ayment of wages . . . [is] not necessary to render one a master” (citation and punctuation omitted)). See also Hoffman, 260 Ga. at 590 (2) (holding that a nurse in an operating room was a servant of the doctor, rather than of the hospital, even though the nurse was employed and paid by the hospital, rather than by the doctor). 4 Although “[c]ontractual interpretation is generally a matter of law to

be decided by the court,” Knott v. Knott, 277 Ga. 380, 381 (2) (589 SE2d 99) (2003), we need not decide here whether the Court of Appeals’ lead opinion correctly interpreted the Agreement because, as described above, the undisputed evidence was sufficient to create a genuine dispute of material fact as to whether Defendants can be held vicariously liable for any negligence on the part of the medical student under the doctrine of respondeat superior. To the extent that the trial court needs to interpret the Agreement in future proceedings, we remind the court that it is not bound by the interpretation set out in the Court of Appeals’ lead opinion, which was not joined by a second judge on the panel, and that, when interpreting the contract, the court should carefully consider the specific language of the Agreement in the context of the Agreement as a whole. See Langley v. MP Spring Lake, 307 Ga. 321, 324 (834

29 (iii) As noted in Division 2 (b) (i) above, we have set out both

general requirements for applying the borrowed servant doctrine to

relieve a general master of vicarious liability for torts committed by

his servant, as well as specific requirements for applying the

doctrine to relieve a hospital of vicarious liability for torts committed

by hospital employees supervised by surgeons. The Court of Appeals’

lead opinion concluded that “the borrowed servant doctrine d[id] not

apply” to “make the surgeons vicariously liable” for the medical

student’s negligence because the evidence presented on summary

judgment could not support a jury finding that Plaintiff had satisfied

either set of requirements. Statham, 371 Ga. App. at 60 (b)

(concluding that the evidence did not support a finding that the

surgeons had “the exclusive right to terminate the medical student”

or that the medical student’s participation in the surgery “require[d]

a level of professional skill and judgment” (citation, punctuation and

SE2d 800) (2019) (“[I]t is axiomatic that contracts must be construed in their entirety and in a manner that permits all of the terms contained therein to be consistent with one another.” (citation and punctuation omitted)). 30 emphasis omitted)).5 Although we agree with the lead opinion’s

conclusion — that Defendants could not be held vicariously liable

under the borrowed servant doctrine — we reach that conclusion for

a different reason.

As our description of the borrowed servant doctrine in Division

2 (b) (i) above reveals, in the context of vicarious liability, Georgia

law recognizes the doctrine as a defense to a respondeat superior

claim: the borrowed servant doctrine is an “exception to the doctrine

of respondeat superior” that relieves a general master of vicarious

liability if a special master had the “right of control over the acts of

the servant[ ]” when the injury occurred. Hoffman, 260 Ga. at 589

(2) (emphasis supplied). See also, e.g., Ross, 258 Ga. at 234

(defendant moved for summary judgment, arguing it was “release[d]

from liability under the ‘borrowed servant’ rule” because the

employee was acting as a servant of a special master when the injury

5 The lead opinion also noted that the medical student was not an employee of the medical school, and thus that “there was no employment relationship between the parties for the borrowed servant doctrine to apply here.” Statham, 371 Ga. App. at 60 (b). 31 occurred); Brown v. Smith & Kelly, 86 Ga. 274, 277 (12 SE 411)

(1890) (affirming a trial court’s determination that the plaintiff

could not recover from a general master for the negligence of a

servant because, when the injury occurred, a special master “had as

ample and complete control over the [servant] as if [the special

master] had originally hired [the servant]”). The parties have not

cited, and we have not discovered, any case in which we have

recognized the borrowed servant doctrine as an independent basis

for establishing a defendant’s vicarious liability for a servant’s acts

or omissions.6 Instead, as explained above, whether a plaintiff can

6 In Tim’s Crane & Rigging, a bailor’s employee performed negligently

while working for a bailee, and we considered whether the bailor could be held vicariously liable for his employee’s negligence under OCGA § 44-12-62 (b), which provides: If the bailor sends his own agents with the thing bailed, the hirer shall not be liable for the acts of such agents but shall only be liable either to the bailor or to third persons for the consequences of his own directions and for gross neglect. Tim’s Crane & Rigging, 278 Ga. at 796-797 (quoting OCGA § 44-12-62 (b); emphasis supplied). We stated that the statute’s “reference to the hirer’s ‘own directions’ . . . refers to the borrowed servant doctrine.” Id. at 797. And we held that the bailor was entitled to summary judgment because the evidence established that the bailee had acquired a right to control the employee under a contract that set out each requirement of the borrowed servant doctrine. See id. at 797-798. Although Tim’s Crane & Rigging addressed only whether the bailor had

32 hold a master vicariously liable for a servant’s acts or omissions has

traditionally rested on the doctrine of respondeat superior. And

consistent with that traditional understanding of vicarious liability,

we have identified the doctrine of respondeat superior, rather than

the borrowed servant doctrine, as the basis for holding a special

master vicariously liable for the acts or omissions of borrowed

servants, who, as the phrase “borrowed servant” implies, are

servants of the special master. See Ross, 258 Ga. at 234, 235 (1)

(explaining that “the borrowed servant rule” allows a general master

“to escape liability,” and that “the negligence of [a borrowed servant

a defense to a claim of vicarious liability under OCGA § 44-12-62, the Court of Appeals appears to have interpreted Tim’s Crane & Rigging as establishing requirements for a plaintiff to recover from a bailee under the statute. See Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777, 779-782 (1) (709 SE2d 324) (2011) (considering evidence relevant to the borrowed servant doctrine’s requirements in assessing whether a bailee could be held liable under OCGA § 44-12-62). We need not decide here whether the Court of Appeals correctly interpreted Tim’s Crane & Rigging because this is not a bailment case proceeding under OCGA § 44-12-62. For our purposes, it is enough to note that even if Tim’s Crane & Rigging is properly interpreted as incorporating the borrowed servant doctrine’s requirements into OCGA § 44-12-62 as the requirements for establishing a bailee’s vicarious liability under that particular statute, it did so only in the context of that statute and did not recognize the borrowed servant doctrine as an independent basis for imposing vicarious liability on a special master. 33 is imputed] to the [special master] under the rule of respondeat

superior” (emphasis supplied)). See also Summerlin, 286 Ga. at 594-

596 (2) (explaining that borrowed servants are servants under

Georgia law).7 In other words, a plaintiff who seeks to hold a special

master vicariously liable for a borrowed servant’s conduct cannot

rely on the borrowed servant doctrine but instead must establish the

elements of a respondeat superior claim — that, when the injury

7 The parties cite Hendley v. Evans, 319 Ga. App. 310 (734 SE2d 548)

(2012), a case in which the Court of Appeals purported to reject an argument that “the borrowed servant doctrine may only be used defensively by a party seeking to transfer vicarious liability to another party,” not “as an affirmative theory of recovery.” Id. at 313-314 (emphasis omitted). But a careful reading of the case reveals that the court rejected this argument only insofar as the defendants contended that the doctrine of respondeat superior could not render the defendants vicariously liable for the conduct of agents under their supervision if the agents were borrowed from another employer. See id. at 314 (rejecting the contention that “a plaintiff injured by the negligent acts of hospital personnel while they were working as borrowed servants of an operating room doctor has no affirmative cause of action against the doctor under respondeat superior” because “say[ing] that a plaintiff has no affirmative cause of action against a negligent actor’s employer [would be] contrary to the doctrine of respondeat superior,” and the negligence of a “borrowed servant” could render an employer liable under the “basic principle of respondeat superior”). In other words, while the Court of Appeals in Hendley purported to hold that the plaintiff could use the borrowed servant doctrine as a basis for holding the defendant vicariously liable, the court in fact approved only the use of respondeat superior for that purpose. To the extent that Hendley could be construed as authorizing the use of the borrowed servant doctrine as an independent basis on which to hold a defendant vicariously liable, rather than as a defense to a respondeat superior claim, we disapprove that reading. 34 occurred, the borrowed servant was acting as the special master’s

“servant” in furtherance of the special master’s goals and within the

scope of the special master’s business. Because Georgia law does not

recognize vicarious liability claims premised on the borrowed

servant doctrine, Plaintiff cannot hold Defendants vicariously liable

under that doctrine.

3. As explained above, Defendants were not entitled to partial

summary judgment on the issue of vicarious liability because, while

there were no genuine issues of material fact regarding their

vicarious liability under OCGA § 51-1-38 or the borrowed servant

doctrine, the evidence presented on summary judgment created a

jury question as to whether the defendant physicians were

vicariously liable under the doctrine of respondeat superior for any

negligence committed by the medical student during Plaintiff’s

surgery. Accordingly, we reverse the judgment of the Court of

Appeals, which affirmed the trial court’s grant of partial summary

judgment to Defendants on the issue of vicarious liability.

Judgment reversed. Peterson, C. J., Warren, P. J., and Bethel,

35 Ellington, McMillian, LaGrua, and Pinson, JJ., concur.

Decided May 13, 2025.

Certiorari to the Court of Appeals of Georgia — 371 Ga. App.

55.

Reynolds Horne & Survant, W. Carl Reynolds, Bradley J.

Survant, for appellant.

Chambless Higdon Richardson Katz & Griggs, David N.

Nelson, Norman C. Pearson III, Rachel Ness-Maddox; Huff Powell &

Bailey, Julye Johns Bailey, for appellees.

Hotchkiss Law Firm, Paul I. Hotchkiss; Philips Branch Hodges

& Worstell, Jason B. Branch, amici curiae.