Medical Malpractice Newsletter
Vicarious Liability in Medical Malpractice
While the pleading and proof requirements for a medical malpractice action can vary significantly from state to state, most states require the injured patient to show that the practicing physician failed to act in accord with the accepted professional standard of care. In proving the negligence of the physician, the injured patient must typically show that a reasonable doctor would have acted differently under the same or similar circumstances.
In some medical malpractice cases, the doctrine of respondeat superior enables an injured patient to recover damages from a third party health care provider (such as a hospital), as well as from the physician who negligently caused the injury. Under this doctrine, a hospital may be held vicariously liable for the medical malpractice of its employees, if the employee was acting within the “scope of employment” at the time of the negligence.
Based on the principle that the wrong of the agent may be the wrong of the employer, respondeat superior applies in many areas of the law. In order for an employer to be held liable for the negligent acts of an employee under the doctrine of respondeat superior, the employee must generally have committed the wrongful act while furthering a purpose of the employer and/or while under the control of the employer. If so, the employer might be held vicariously liable for the injuries that resulted from the employee’s negligent act, even when the employer is without fault.
Respondeat superior is equally applicable to medical malpractice actions. Specifically, the liability of the individual who acted negligently in providing medical services may extend to the employer health care provider, including:
- A doctor or other practitioner who employs assistants, such as nurses or technicians
- A health care company, such as an HMO or a hospital, that employs doctors and support professionals (nurses and technicians)
By imposing liability on a physician or other health care provider for a medical injury caused by another’s negligence, respondeat superior can help ensure that an injured patient will be financially compensated for the injury at issue.
Limiting Malpractice Liability Exposure
Under respondeat superior, an employer is generally not liable for the actions of independent contractors. Accordingly, some hospitals and health care companies hire doctors and other medical staff as independent contractors, in an attempt to decrease the risk of vicarious liability.
However, some jurisdictions still find hospitals liable for the negligent acts of independent physicians under the “apparent agency” theory, if a reasonable person would have concluded that the doctor was an employee or agent of the hospital and reasonably relied on that assumption. In 1978, a Washington Court of Appeal issued a seminal decision on the issue of apparent agency, ruling that a hospital could be held vicariously liable for an independent contractor’s negligence where the hospital “held the physician out” to be on staff. In that case, the court considered the following factors in applying the “apparent agency” theory to hold the hospital vicariously liable for the non-employee physician’s negligence:
- The patient sought treatment primarily from the hospital
- The hospital chose the physician that treated the patient
- The doctor had a “significant relationship” with the hospital, by virtue of performing an “inherent function”
Even when respondeat superior is not applicable, a third party health care provider may be held directly liable for its own negligence, including:
- Failing to verify the employee’s qualifications and skills
- Negligent supervision and retention of the employee
- Failing to provide a sufficient number of medical personnel
- Negligent performance of clinical tests
- Failing to protect patients from harm
- Failing to keep accurate medical records
- Improperly admitting or discharging patients
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