Vicarious liability (liability for act of another)

An employer is responsible not only for his own negligence but also for the negligence of his employees, if such acts occur in the course of the employment and within its scope, by the principle of respondent superior (let the master answer).

Three conditions must be satisfied for vicarious liability:

(1) There must be an employer-employee relationship,

(2) the employee’s conduct must occur within the scope of his employment, and

(3) while on the job.

(1) In general practice, the principal doctor becomes responsible for any negligence of his assistant. Both may be sued by the patient, even though the principal has no part in the negligent act. The same applies where the principal employs non-medical servants.

(2) When two doctors practice as partners, each is liable for negligence of the other, even though he may have no part in the negligent act. This comes under vicarious liability.

(3) When two or more independent doctors are attending on a patient, each may be held liable for the negligence of others that he observes, or in the ordinary course should have observed and allows it to continue without objection.

“Borrowed servant doctrine”: An employee may serve more than one employer, e.g., the nurse employed by a hospital to assist in operations may be the “borrowed servant” of the operating surgeon during the operation, and the servant of the hospital for all other purposes. In this case, the lending employer temporarily surrenders control over hi worker and the borrowing employer temporarily takes over control.

(4) A doctor may be associated temporarily with another doctor with the establishment of an employee-employer relationship between them in vicarious liability. Thus, if one doctor assists another in the operating room for a fee, the assistant is considered as an employee of the principal surgeon.

(5) If a physician has supervisory control and the right to give orders to a hospital employee in regard to the particular act, in the performance of which the employee is negligent, the physician becomes legally liable for the harm caused by the employee.

(6) If a swab, sponge, instrument, etc., is left in the patient’s body after the operation, the surgeon is liable for damages.

(7) A hospital, as an employer, is responsible for negligence of its employees who are acting under its supervision and control in vicarious liability. It does not matter whether they are full-time or part- time, resident or visiting, permanent or temporary, because even if they are not servants, they are the agents of the hospital to give the treatment.

(8) Hospital management will be held responsible for the mistakes of resident physicians and interns in training, who are considered employees when performing their normal duties.

(9) A physician, vicarious liability, is responsible for the acts of the interns and residents carried out under his direct supervision and control.

(10) When employers provide medical services to their employees, or conduct pre-employment examination of prospective employees, they may be liable for the negligence of their doctors.

(11) Insurers who have contracted to provide medical services may be liable for the negligence of their physicians.

(12) The employer or the insurer of employees covered by Workmen’s Compensation Act may be liable for the negligence of their doctors under vicarious liability.

(13) Ordinarily, a surgeon is not liable for the negligence of anesthetist, and the anesthetist is not liable for the negligence of the operating surgeon.

(14) Physicians and surgeons are not responsible for the negligent acts of competent nurse or other hospital personnel, unless such acts are carried out under their direct supervision and control.

(15) When a doctor recommends another doctor to his patient after due care, vicarious liability is on him for the negligence of the new physician, but he becomes liable if he knowingly refers his patient to an incompetent surgeon.

(16) When a sick or injured person consults his own doctor for diagnosis and treatment, and the latter recommends hospitalization, the hospital to which the patient is admitted is not liable for the doctor’s negligence resulting in injury to the patient.

(17) Hospitals cannot be held responsible for the negligent acts of members of the superior medical staff in the treatment of patients, if it can be proved that the managers exercised the due care and skill, in selecting properly qualified and experienced staff.

(18) If a physician has written a prescription properly, he is not liable for a pharmacist’s negligence in preparing it, but vicarious liability is on him when he orders a prescription over the telephone resulting in misunderstanding as to the drugs or their dosage.

Both the employer and employee are sued by the patient, because the employee may lack funds for paying the damages. Usually, liability will be fixed upon those actually at fault, and those whose control over the negligent is proved.

The employer may be ordered by the Court to pay compensation to the injured patient. In such cases, the employer can engage in “third party proceeding”, against the negligent doctor or employee asking for repayment under vicarious liability.