Vicarious Liability

Sections:

Introduction

Vicarious liability is a legal concept which allows liability for a wrongdoing to be extended beyond the original wrongdoer to persons who have not committed a wrong, but in whose behalf the wrongdoers acted. The primary practical importance of this concept to a plaintiff is that it provides additional financially responsible defendants with potentially greater resources than the original defendant. 1 For our purposes, this means that gastroenterologists can be held legally liable not only for their own actions, but also for the actions of others for whom they have supervisory responsibility, even if the gastroenterologist had neither personally committed, nor even was aware of, the wrongful act. When the negligence of a subordinate is imputed to the gastroenterologist, s/he is said to be vicariously liable.2

Respondiat Superior

The historical derivation and central principle is Respondiat Superior, let the master answer for the torts (civil wrongs) of his servants. “Master-servant” definitions have evolved to employer- employee relationship. Further evolution includes the hospital or corporations’ vicarious liability for actions of employed physicians. Traditionally, independent contractors are not considered employees, and do not engender vicarious liability for the hiring organization. However, in the medical arena, vicarious liability has included even some “independent contractor” (or private practice physicians) as will be noted under the legal theories of ostensible agency and corporate liability. 2,3,4 
For vicarious liability to apply, it is necessary for there to be an employment relationship, and the negligent conduct must be within the scope of employment. 3
Thus, for example, a physician would not be liable for an employee injuring someone in a car accident during his vacation, but could be held liable if her receptionist carelessly leaves a medical record lying open in the waiting room and an HIV diagnosis is revealed to others.
Several specific relationships in gastroenterology may involve vicarious liability. These include the relationships of preceptor, proctor, employer and administrator. 5

Preceptor

A preceptor is a teacher or instructor. When teaching endoscopic practice to a trainee, or supervising clinical care as an attending physician, the gastroenterologist may be found vicariously liable for the acts of the trainee. Examples could include: a perforation by a gastroenterology fellow learning colonoscopy; a missed colon cancer by a resident or family practitioner learning flexible sigmoidoscopy; or a failure to appreciate warning signs of impending collapse in a patient with sever pancreatitis by the medical team on a gastroenterology rotation. Given this vulnerability to liability, gastroenterologists should be careful to see that their subordinates practice within appropriate standards of care, i.e. that procedures are done for reasonable indications, and with appropriate skill. The gastroenterologist may wish to temporarily “take the scope” if s/he is not comfortable with the level of skill exhibited during a portion of the exam. The physician may wish to set parameters for being notified about significant patient problems. This notification may prove difficult, since the very persons most likely to cause negligent errors may be the least likely to know what or when to report to an attending physician. It may also be desirable to be sure the patient knows a trainee will participate in the procedure, and that there is appropriate documentation of medical activity and decisonmaking.

Proctor

A proctor is a physician who observes and monitors another physician. 6 In gastroenterology, this usually involves evaluation of a physician seeking endoscopic privileges. Since the role of the proctor is to assess the capabilities of the physician being monitored, it is generally felt that the proctor has no duty to the patient, and therefore no liability. Generally proctors are not found liable for the negligent actions of the observed physician even through a theory of vicarious liability. However, if the proctor becomes involved in the care of the patient, this may change.

In order to minimize liability while proctoring, consider the following:

  1. Review the A.S.G.E. statement on proctoring and hospital endoscopy privileges. 6
  2. Do not interfere with the Proctored Physician
  3. Do not offer advice or interact with the patient other than to introduce yourself and state your role.
  4. Absent substandard medical care, which is harmful to the patient, report only to the hospital or regulatory committee you represent.
  5. In the event one witnesses substandard medical care which is harmful to the patient, the physician may have a duty to act. Consider contacting an appropriate superior, asking the proctored physician to stop the substandard actions (if possible) or, as a last resort, intervening. These actions should be documented carefully, to protect from both patient liability and challenge by the proctored physician. 5

Employer

The role of employer subjects one to the most standard form of vicarious liability. Gastroenterologists are responsible for the behaviors of their office personnel. If a receptionist violates patient confidentiality, or a nurse violates sterile technique, their physician may be held vicariously liable as the employer responsible for maintaining appropriate standards. Risk management measures here include appropriate training and supervision to insure the professionalism of the office staff.

Administrator

An administrative capacity in an endoscopy unit or gastroenterology division means a duty to the patients who will be treated in that unit. The administrator is expected to develop policies and procedures that ensure a safe environment, and comply with state and federal regulations. Responsibilities include credentialling, infection control and workplace safety. Thus, if the gastroenterology unit director knew, or should have known, that endoscopic equipment was not adequately maintained, that infection control procedures were defective, that sexual harassment was occurring, that director may be liable for the negligence of those employees. In general, the director would not be liable for a complication occurring in a procedure performed by an appropriately credentialled skilled physician. However, if the director knew, or should have known, that an unskilled physician was practicing in the unit, and did not take appropriate corrective actions, liability would exist. Many gastroenterologists with these responsibilities may wish to be certain that their unit has been reviewed by, or managed with, individuals with knowledge that includes OSHA regulations, fraud and abuse statutes, employment regulations and infection control policies.

Hospital Liability

The discussion thus far has emphasized the gastroenterologist’s liability for the actions of others. The following section will review the liability of institutions for the gastroenterologist’s negligent actions.

A hospital can also be a “master,” held accountable for and sued for the actions of its employees. The hospital or institution is vicariously liable for its physician employees, found for example in a staff model HMO or hospital owned radiology department.

Ostensible Agency

Hospital liability can also arise from a derivative legal principle, ostensible agency. Here, liability is imposed on the hospital for negligent acts of independent contractors (usually non-employed private practice staff physicians) whom patients reasonably believed to be staff physicians. If hospital advertising and promotion is such that patients reasonably believe the hospital has authority over the physicians practicing there, the patient’s claim of reliance on the hospital to provide good medical services has been found to trigger hospital liability even for actions of non employed staff physicians.7 When a patient “looks to the institution, not the physician” for care, the contractual arrangements between the hospital and the doctor may not protect the hospital from such a patient’s claim. Further, hospitals have some “non-delegable” duties , i.e. responsibilities the hospital can’t pass on to staff physicians. 8

Corporate Liability

Another doctrine, that of corporate liability, outlines the supervisory responsibilities for which hospitals are liable. In the seminal case of Thompson vs. Nason Hospital, the court found the hospital, through its agents and employees, failed to adequately examine and treat, and follow hospital rules regarding consultations and patient monitoring. 9

The court finding imposes the following duties on hospitals:

  1. The duty to use reasonable care in maintenance of safe and adequate facilities and equipment
  2. The duty to select and retain only competent physicians
  3. The duty to oversee all person who practice medicine within its walls as to patient care, and
  4. The duty or formulate adopt and enforce adequate rules and policies to ensure quality care for patients.9

From this it follows that the tort of negligent credentialling (i.e. the hospital should have known not to give certain gastroenterologists staff privileges) can be used to make hospitals liable for a staff physicians actions. Some lawyers have argued for even broader hospital responsibility, enterprise liability, which would make the hospital responsible for all negligence that occurred as part of the hospital enterprise. 3 That argument has generally not been accepted.

Implications of Vicarious Liability

Ironically, vicarious liability can be good news for the physician, because the hospital insurance may cover and defend the physician, and their insurer has deeper pockets than an individual physician. However, this benefit comes with an associated cost. Hospitals and other institutions who have liability exposure based on physician actions will be inclined to increasingly monitor, supervise and exert more control over physician activities to reduce their liability costs. 11 From a legal public policy point of view, this is a desirable outcome. Public policy, a legal theorist would argue, suggests that hospitals are in best position to help reduce medical negligence, and holding hospitals legally accountable will provide the necessary incentive for them to develop risk reduction programs. 3 From the point of view of the practicing gastroenterologist, one can expect more intense and frequent credentialling reviews, more mandated CME programs, and perhaps review of one’s compliance with hospital policies and/or various guidelines.

Summary

In summary, today’s gastroenterologist may be held liable for mistakes of those for whom they have supervisory responsibility, even if they were unaware of their actions. The roles of preceptor, proctor, employer and administrator should be handled with care. Health care institutions may be held liable for the negligent actions of physicians, and thus will be inclined to monitor and supervise physician activities. Knowledge of potential vicarious liability may allow better preparation for, and minimization of, that liability.

References

  1. Henderson JA Pearson RN Siciliano JA. The Torts Process Boston, Little Brown And Company, 1994
  2. Furrow BR Greanye TL Johnson SH et. al. Health Law West Publishing Co., St.Paul, Minn., 1995
  3. Wing KR Jacobs MS Kuszler PC. The Law and American Health Care Aspen Law and Business, N.Y. N.Y, 1998.
  4. Plumeri PA “Managed Care and Risk Management” Gastroenterology Clinics of North America 26 (4): 895 –910, 1997
  5. Plumeri PA “Vicarious Liability” Gastrointestinal Endoscopy
  6. “Proctoring and Hospital Endoscopy Privileges”, Gastrointerstinal Endoscopy 37(6) 666-667, 1991
  7. Clark v Southview Hospital and Family Health Center 68 Ohio St. 3d 435 (1994)
  8. Jackson v Power 743 P.2d 1376 (Alaska, 1987)
  9. Thompson v. Nason Hospital 527 PA. 330 (1991)
  10. Michel CA “Credentialling Liability in the Managed Care Arena” 35 Tort & Ins. L. J. 137, 1999
  11. Berlin L . “Vicarious Liability” American Journal of Radiology 169: 621-624, 1997

IMPORTANT REMINDER:
The preceding information is intended only to provide general information and not as a definitive basis for diagnosis or treatment in any particular case. It is very important that you consult your doctor about your specific condition.

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