Adventures in Vicarious Liability
Most physicians understand the basics of US civil law: (1) physicians owe a duty of care to their patients – and perhaps to others who may be harmed by a patient; (2) the yardstick by which their performance is measured is called “the standard of care”; (3) if they fail to practice consistent with the standard of care, they can be held responsible for damages suffered by those to whom they owe a duty (4) if those damages result from their breach of their duty. That’s US medical malpractice law in a nutshell.
What physicians often don’t understand is that they can be held “vicariously liable” for the acts of others. How so?
The simplest example is liability arising out of the employer-employee relationship. If an employee harms someone in the course of their employment, the law will hold the employer responsible for the employee’s acts. In psychiatric practice, for example, if a nurse you employ improperly draws a blood sample, resulting in harm to the patient, you will be held legally responsible to compensate the patient for the damage suffered. This legal doctrine goes by the Latin term “respondeat superior,” or ‘let the master answer’.
It’s not so simple when a psychiatrist has a variety of contractual relationships, whether formal or informal, with others. For example, let’s say you rent your office on the weekends to a psychologist to see her own clients, and she is sued for malpractice by one of those clients. Her client might also sue you. Will the law hold you responsible?
The law takes a practical approach to these situations: What would a reasonable person assume about the relationship between the two of you? Is only your name on the door to the office? Is there a disclaimer posted in the office noting that the Psychologist is not employed or otherwise affiliated with your practice? Does Psychologist’s letterhead suggest that she is affiliated with your practice? Is the Psychologist’s rental obligation to you connected with the income she derives from seeing clients there (in other words, do you get a percentage of her billings?). What would a reasonable person walking through the door on a Saturday afternoon believe?
The practice point here is to make sure that you don’t inadvertently create relationships which could suggest that you are vicariously liable for the acts of others. We have some risk management materials that can help you understand how to make sure you are knowingly accepting liability for the acts of others. E-mail us and we can send you a copy and check out our group coverage page for more information on how to protect your practice.