HEALTH CARE AND
THE LAW OF VICARIOUS LIABILITY
The legal doctrine of respondeat superior
holds principals legally responsible for the actions of their agents. The
most common principal-agent relationship is the employer-employee
relationship. The doctrine of respondeat superior holds that
employers can be held vicariously liable for the negligence of their
employees who act within the scope of their employment.
Thus, in the health care field, health care entities such as health plans,
hospitals or physicians, may be held vicariously liable for the negligence
of its employees acting within the scope of their employment. For example,
a hospital can be held vicariously liable for the negligence of a nurse
employed by the hospital, even if the hospital itself has not acted
negligently.
The doctrine of
respondeat superior became law because employers were considered better
able to compensate injured parties than employees who work for the employer,
employers can purchase insurance and spread the risk over the entire
business, and employers should not be able to escape liability for actions
taken on its behalf.
The primary legal issue
presented in many cases involving health care entities is whether the
negligent employee is truly an employee of the health care entity or is
actually an independent contractor, because health care entities are not
vicariously liable for the negligent acts of independent contractors.
Whether a negligent party is an employee or an independent contractor
depends on the facts of each case.
The most significant fact to be determined in such cases is whether the
health care entity has the right to control the manner and means by which
the negligent party was to perform the work undertaken.
For example, a health plan may not be held vicariously liable for the
negligence of a physician on its provider panel in his or her treatment of a
patient if the health plan does not control the manner and means by which
the physician treated the patient.
However, health care
entities can be held vicariously liable for the negligence of “borrowed” or
“temporarily employed” individuals. Thus, surgeons can be vicariously
liable for the negligent acts of nurses under his or her direct supervision
and control in surgery even if the nurses are employees of the hospital and
not employees of the surgeon.
However, a surgeon may not be vicariously liable for the negligence of an
anesthesiologist who acts independently of the surgeon during surgery.
In some lawsuits, the
question of whether the employee was acting within the scope of his or her
employment is important in determining whether the employer should be held
vicariously liable for the acts of its employee.
In the health care field, this issue has arisen when hospitals are sued
vicariously for an act of sexual molestation of a patient by its employee.
In many cases, hospitals are not held vicariously liable because such acts
are considered to be unrelated to the duties of the employee and not
reasonably foreseeable by the hospital.
Hospitals and health
plans have been sued for negligently failing to properly investigate the
credentials of physicians on their medical staffs or provider panels.
However, such alleged negligence is not vicarious in nature because the
hospital or health plan is alleged to have acted negligently and may be
liable independent of any alleged employee-employer relationship between the
physician and the hospital or health plan.
As noted above, the
doctrine of respondeat superior is being increasingly examined as the
legal theory by which health plans may be held liable for the negligence of
physicians in lawsuits involving managed care. These lawsuits are commonly
referred to as HMO malpractice or managed care liability cases and involve
allegations that by managing the health care services being provided, the
health plans actually direct and control the actions taken by the health
providers.
