When you receive treatment at a medical facility, you are typically attended by more than a treating doctor. Other doctors may visit you and help in diagnosis, a technician may perform medical tests on you, and a nurse may perform a variety of other tasks. When medical negligence occurs in such a case, it is harder to determine exactly who was responsible. In such and other scenarios, the principle of vicarious liability may apply. Vicarious liability is when a parent or superior entity, such as the hospital, is held responsible for the negligence of its employees. In doing so, the theory of respondeat superior is used in a malpractice lawsuit.
The notion of ‘respondeat superior’ is often used in determining vicarious liability in medical malpractice. This term literally translates to ‘let the master answer.’ In other words, an employer such as a hospital must be held responsible for the negligence of an employee, such as a doctor.
However, a number of requirements must be met for the respondeat superior to apply. These requirements prove that an employee was within the scope of employment when committing negligence. Following are the key criterion:
- The employee committed negligence during defined work hours
- The negligence occurred during an activity or task the employee was hired and paid to perform
- The activity during which negligence was committed also benefitted the hospital in some way
For instance, consider this: a doctor misdiagnosed you during treatment at a hospital, causing harm and injury. To determine vicarious liability, it must be seen whether the doctor was a full-time employee and working within the scope of his job.
It is best to get a good Lakeland, FL medical malpractice lawyer when you are considering using vicarious liability in a malpractice lawsuit. The hospital, doctor or healthcare facility you sue will likely have their well-paid lawyers. And without good legal help on your side, you may not be able to see the lawsuit through.
When applying vicarious liability in a malpractice lawsuit, it is first important to establish employer-employee relationship. A healthcare facility may employ both full-time doctors and those engaged as independent contractors. The latter may work at the facility outside the scope of work and for personal profit. Full-time employees, on the other hand, work only during work hours. A hospital also has ‘right of control’ over a full-time employee.
In the context of medical law, ‘right of control’ entails the right to define the method a doctor may use to admit, evaluate and treat a patient. When a hospital has this right as an employer, it may be held liable for the negligence of a doctor. Where this right does not exist, vicarious liability may be harder to establish.
When Does Vicarious Liability Apply?
If the above requirements are met, a hospital may be held liable for the following forms of negligence or errors committed by an employee:
- Administering wrong or untimely medication, or not administering one at all when required
- Surgical errors and mistakes
- Careless monitoring of the patient
- Failure to follow up with a patient
Vicarious Liability for Doctors
In many cases, a doctor is responsible for supervising and overseeing a team of other healthcare employees such as nurses and technicians. If a member of this team commits negligence and does not provide quality standard of care, the doctor may be held liable.
Common Defenses to Vicarious Liability
A doctor or a hospital held liable for their employees or assistants may come up with a number of defenses. It is common for an employer to argue that vicarious liability doesn’t apply as the negligent person didn’t meet the definition of an employee. This is particularly the case if the negligent person was an independent contractor. A hospital may also argue that the doctor or professional who made a mistake wasn’t working within defined hours or exceeded the scope of employment.
Such defenses can be countered by carefully analyzing the employment agreement of the negligence individual. Vagueness or lack of clarity in the agreement may be used by a good attorney to your advantage.
Hiring a Reputable Medical Malpractice Attorney in Lakeland
If you have suffered medical malpractice in Lakeland and aim to sue for vicarious liability, let us help. Here at Burnetti P.A., our Lakeland personal injury attorneys specialize in seeking a fair compensation for medical negligence. When suing an entity such as a hospital, we sue for an amount that is commensurate with the responsibility of that entity. Contact us today to book a FREE consultation.