Vicarious Liability

At a recent hospitalization for a surgery, you were administered an incorrect dosage of a prescription medication, which caused you to go into cardiac arrest and required you to spend several days in intensive care and left you vulnerable to future heart issues. It is unclear whether the prescription was written incorrectly or just administered improperly, so it is uncertain whether it was the doctor, pharmacist, or nurse who was to blame, though they all were employed by the hospital. Who is going to pay for this? Will it be the doctor, pharmacist, nurse, or the hospital?

In many medical malpractice cases, questions of whether the hospital, as well as a treating physician, is responsible are common. This article covers the basics of an employer's liability for harm caused by employees, called "respondeat superior" or "vicarious liability."

Vicarious Liability Basics

A doctor who has been negligent may not be the only defendant in a medical malpractice suit. The hospital that employed the doctor can be held vicariously liable for the doctor's negligence under a theory of "respondeat superior."

Respondeat Superior

Respondeat superior, which means "let the master answer," is a legal principle that holds an employer liable for the negligence of its employees in certain circumstances. In order for respondeat superior to apply, the negligent act must have occurred within the employee's "scope of employment." But when exactly is an employee acting within the scope of employment?

Generally, an employer may be held vicariously liable for the negligence of an employee if:

• The injury occurred while the employee was on the clock;
• The injury was caused by an activity the employee was hired to perform; and
• The employer benefited in some way from the activity the employee was performing at the time of the injury.

Since treating patients and performing surgeries are activities that usually fall within a doctor's scope of employment, hospitals may be liable for any injuries negligently caused by their doctors during treatment or surgery. On the other hand, if a doctor caused an injury while practicing outside of business hours in another clinic, the hospital that employs the negligent doctor may be off the hook.

Other Vicarious Liability in Medical Malpractice

Hospitals aren't the only ones who can be held vicariously liable in medical malpractice suits. For example, a doctor who runs a clinic may be held liable for any negligence on the part of their staff in carrying out orders or caring for patients. Likewise, an attending physician may be held liable for any negligence on the part of interns or medical students under the physician's guidance. In addition, private medical practices may also be held liable for the negligence of their partners and associates.

Defenses to Vicarious Liability

Employers facing vicarious liability suits often defend themselves by trying to prove that the doctor was not an employee of the hospital. Since employers generally aren't liable for the negligence of independent contractors, an employer may also argue that the employee wasn't really an employee at all. For example, a hospital may emphasize the limited role it plays in supervising its doctors' work and show evidence of the doctor's staff privileges.

However, just because a hospital calls a doctor an independent contractor does not make it so. The court may use tests to determine whether the doctor is considered an employee or independent contractor. Factors that can determine when a worker is an employee or contractor include:

• Is the doctor free from direction and control of the hospital?
• 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

If you were injured in a medical injury, you may not be sure whether the injury was caused by a negligent doctor or whether the hospital is also at fault. Which parties are ultimately responsible and what kinds of damages may you claim from each defendant? Malpractice claims can be complex but determining vicarious liability can make it even more difficult. Before you give up on your claim, you owe it to yourself to have a legal professional review your case.