Vicarious liability is a legal concept that attributes responsibility to a person or entity who should be responsible for another’s negligence. Often it’s called by its legal term, “respondeat superior.” In the case of medical malpractice, for example, questions can arise about whether a hospital is responsible for the individuals who provide care to patients – doctors, residents, nurses, x-ray technicians, pharmacists, etc. 

The legal theory of vicarious liability provides opportunities for recovering for damages in situations where it might not be available, such as when the individual defendant doesn’t have assets or liability insurance.  Vicarious liability is available in medical malpractice cases in Florida and for other personal injury causes of action. A Fort Lauderdale medical malpractice attorney or Orlando medical malpractice lawyer can help you understand whether you have a case against your medical professional’s employer.

Elements of Vicarious Liability

For an employer to be liable under the legal theory of vicarious liability, the plaintiff must show some kind of relationship between them, such as:

• The negligent party was an employee or agent, and his or her actions were subject to the employer’s control; 
• The agent or employee was acting within the course and scope of that relationship with the employer;  
• The agent or employee was required to follow the rules and regulations that the employer put in place; and
• The activity or action of the health care provider benefited the employer in some way.

Was There an Employer-Employee Relationship?

When applying vicarious liability in a malpractice lawsuit, a plaintiff must first establish the appropriate relationship between the hospital and the health care providers. Sometimes hospitals directly employ the health care providers on a full-time basis and are legally responsible for their negligence. In other cases, hospitals engage those medical professionals as independent contractors, and the language of those contracts and any agreements or documents signed by the patient can have an impact on the hospital’s ultimate responsibility. 

How to Establish the Course and Scope of A Negligent Party’s Employment

Unless an employee was acting within the “course and scope” of his employment, an employer cannot be held liable. Whether an employee was, in fact, acting within the course and scope of his employment is a highly fact-based inquiry that looks at standard practices in the particular industry, the particular circumstances surrounding the injury and accident, and other factors. Florida civil jury instructions find the “course and scope” requirement satisfied if the employee was acting in the interests of the employer and conducting activities that were reasonably related or incidental to their employment. 

In What Circumstances Can Vicarious Liability Apply?

A hospital, health care facility, or other employer may be held liable for the negligence of its employees in the following situations:

• Misdiagnosis of a patient, including failure to diagnose an illness or disease
• Administering the wrong medication or the wrong dosage
• Failing to administer medication
• Failing to seek the appropriate consultations from other specialists
• Surgical Errors 
• Failure to monitor the patient in an appropriate manner after surgery
• Failure to provide adequate follow-up with a patient

This is not an exhaustive list; there may be many other negligent actions of a medical professional that can be attributed to the employer. 

Note that in some instances, a physician can also be held vicariously liable for medical professionals who work under their supervision. Some examples might include a doctor who leaves a patient with an untrained nurse, a medical student or a mid-level provider like a physician assistant or nurse practitioner who fails to follow protocols or provide the required standard of care. 

What Defenses to Vicarious Liability Are Available?

A number of defenses are available to a hospital, healthcare facility or doctor who is defending an allegation of vicarious liability. These include trying to prove that the negligent party was not an employee, that the employee was working outside of the course and scope of employment, that the negligent party was an independent contractor and other defenses.  

Careful analysis of pertinent employment agreements and/or understanding relevant industry practices are helpful and important in understanding whether any of the defenses are valid. 

Contact HPS Legal Today for Immediate Assistance

A Fort Lauderdale medical malpractice attorney or Orlando medical malpractice lawyer from Haliczer Pettis & Schwamm, P.A. may be able to help you understand whether you have a medical malpractice case that may include your medical provider’s employer. We have handled thousands of medical malpractice cases and are prepared to help you too. Contact us today for a free and confidential legal consultation.