Medical Malpractice: Who Can Be Sued?
Created by FindLaw's team of legal writers and editors | Last reviewed October 02, 2019
The legal concept of medical malpractice is not limited to the conduct of medical doctors but applies also to anyone in the scope of employment, such as nurses, anesthesiologists, health care facilities, pharmaceutical companies, and others that provide health care services.
The main thrust of a medical malpractice suit is proving fault that leads to personal injury -- often by the employer's liability to their employee's actions, such as a doctor or someone else directly related to medical care making a poor decision. Sometimes other entities, such as parental liability or contributory negligence, are part of the injured person's case and can be sued in the medical malpractice claim.
Hospitals are corporations that are either public or private entities. In the context of medical malpractice actions, hospitals can be held directly liable for their own negligence, and can also be held "vicariously" liable for the negligent actions of an employee. Vicarious liability means a party is held responsible not for its own negligence, but for the negligence of another.
A hospital's medical staff will consist of licensed physicians and other licensed health care providers, such as nurses, physician's assistants, and nurse practitioners. In hiring its medical staff, a hospital must make reasonable inquiries into an applicant's education, training and licensing. If a hospital fails to make reasonable inquiries regarding a member of its medical staff, it might be held liable under the "corporate negligence" doctrine for negligent supervision or retention, if the staff member's negligent care injures a patient. A hospital might be held liable for its own negligence where, for example, it fails to investigate the credentials of an attending physician before granting him/her privileges at the hospital, or where it allows a physician whom it knew, or should have known, was incompetent, to treat patients at the hospital.
Hospitals are also required to ensure that there is a sufficient number of registered nurses on duty at all times to maintain quality patient care. A hospital that fails to do so may be held liable for injuries to patients resulting from a nursing shortage. Another area of potential liability arises when a hospital's employees fail to follow the orders of a patient's private attending physician. Conversely, if a hospital employee finds a private physician's treatment plan to be clearly contraindicated, but fails to make a reasonable inquiry of the physician as to the treatment plan, the hospital could also be found liable.
When a hospital employee's malpractice injures a patient, the hospital itself may be held vicariously liable under the legal doctrine of "respondeat superior." Under this doctrine, an employer may be held liable for the negligent acts of its employee, if the employee was acting within the scope of his or her employment when the negligent act or omission occurred. This doctrine is very important to plaintiffs in medical malpractice cases because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.
In some situations, health care providers such as physicians are considered independent contractors rather than hospital employees, and the doctrine of "respondeat superior" will not be applicable. What this means is, if a doctor or other health care professional is an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor's negligence. In certain situations, a hospital may be vicariously or directly liable for the acts or omissions of contractors it retains to operate emergency rooms and outpatient facilities.
In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injury, but only if the manufacturer failed to warn physicians of the drug's potential side effects or dangers.
A pharmaceutical manufacturer's primary duty is to physicians. Thus, a manufacturer generally will not be liable for a patient's injuries, as long as it adequately informed the physician of all risks associated with a particular drug. As to the ultimate consumer, a pharmaceutical company only owes a duty to ensure that the medication it manufactures will be reasonably safe when used as intended. To ensure a drug's safety, the manufacturer must research the drug's possible side effects and risks before putting it on the market. If the pharmaceutical manufacturer fails to adequately warn a physician of a drug's dangers, however, the drug becomes what is known under product liability law as "unreasonably dangerous," and the manufacturer might be held liable for the failure to provide proper warnings.
In most cases, the prescribing physician is considered a "learned intermediary," which means that because of his or her superior medical knowledge, and assuming he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.
Get a Claim Evaluation from a Medical Malpractice Attorney
Got a medical malpractice case, but unsure who is liable and who you should sue? A qualified medical malpractice attorney can help you answer these questions. A skilled attorney can discuss the strengths and weaknesses of your case and advise you about who will make the best defendant(s). A great first move is to get a claim evaluation from a medical malpractice lawyer.
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