Vicarious Liability

In tort, sometimes it is hard to figure out which medical professional caused a patient's personal injury.

Sometimes, it is easy to know who caused the injury. If a surgeon makes a mistake, the surgeon is liable for a patient's injury. What happens when it is difficult to pinpoint who caused a personal injury if multiple medical professionals could have caused the injury?

Imagine if, before surgery, someone gave a patient an incorrect dosage of a prescription medication. The dosage caused the patient to go into cardiac arrest and required them to spend several days in intensive care. As a result, the patient may be vulnerable to future heart issues.

Who is responsible?

It is unclear whether the prescription was incorrect or administered improperly. It is also uncertain who caused the harm. Was it a doctor, a pharmacist, or a nurse? If all medical professionals are employees of the hospital, who is liable?

In many medical malpractice cases, questions of fault are common. Are both the hospital and the treating physician liable?

This article covers the basics of employer liability for harm caused by employees. This legal doctrine is called respondeat superior or vicarious liability.

Vicarious Liability Basics

In vicarious liability claims, a doctor who caused an injury may not be the only defendant in a medical malpractice suit.

The hospital that employed the doctor can be vicariously liable for the doctor's negligence under the doctrine of respondeat superior. Vicarious liability focuses on the employer-employee relationship between the hospital and the doctor.

Respondeat Superior

Respondeat superior is Latin for "let the master answer." This legal term holds an employer liable for the negligence of its employees.

For respondeat superior to apply, the negligent act must have occurred within the employee's scope of employment. When is an employee acting within the scope of their employment?

An employer may be vicariously liable for the negligence of an employee when:

• The injury occurred while the employee was working
• The wrongful act occurred during a service the employee was hired to perform, such as birth injury during a delivery or brain injury during surgery
• The employer benefited from the activity the employee was performing at the time of the injury

Treating patients and performing surgeries are within a doctor's scope of employment. In some cases, hospitals may be liable for any injuries negligently caused by their doctors during treatment or surgery.

However, a hospital that employs a negligent doctor may not be liable if a doctor causes an injury while practicing outside of business hours in a different healthcare facility.

Other Vicarious Liability in Medical Malpractice

Hospitals are not the only ones who can be vicariously liable in medical malpractice suits. For example, a doctor who runs a clinic may be liable for negligence of their staff that carries out orders or cares for patients.

Likewise, an attending physician may be liable for the negligence of interns or medical students under the physician's guidance. In addition, private medical practices may also be liable for the negligence of their partners and associates.

Defenses to Vicarious Liability

Employers facing vicarious liability suits often attempt to prove that the doctor was not an employee of the hospital.

Since employers are not liable for the negligence of independent contractors, an employer may argue that the healthcare provider was not an employee.

For example, a hospital may emphasize the limited role it plays in supervising the doctor's work. The hospital may say that they had no right of control over the doctor's actions. The hospital may show evidence of the doctor's staff privileges.

However, even though a hospital calls a doctor an independent contractor, that does not automatically make the doctor an independent contractor for legal purposes. The court will analyze the situation to determine if the doctor is an employee or an independent contractor.

The court will need to answer the following questions:

• Is the doctor free from a hospital's right of control and direction?
• Does the hospital have the right to direct the financial aspects of the doctor's job?
• What is the extent of the relationship between the hospital and the doctor?

Have an Attorney Review Your Medical Malpractice Claim

Were you injured during medical care? Whom should you sue? The doctor? The hospital? Both? Who is responsible, and what kinds of damages may you get from each defendant?

Malpractice claims can be complex, and determining vicarious liability can make it even more difficult. Before you give up on your claim, you owe it to yourself to seek legal advice from a medical malpractice attorney.