Most hospitals are extremely selective in who they hire and who they allow to come into contact with patients, as being anything but can result in costly litigation for the company. Unfortunately, despite a hospital’s best efforts, medical malpractice claims may still arise. When one does, the hospital often wonders, does vicarious liability apply? 

According to FindLaw, vicarious liability does apply in medical malpractice cases. This is due to the theory of respondeat superior. Respondeat superior is a legal standard that holds an employer accountable for the negligent acts of its employees. However, for this theory to apply, the negligent conduct must occur within the “scope of employment.” To determine if a health care provider’s negligence occurred during the scope of employment, the courts will ask the following questions: 

  • Did the negligence occur while the doctor or provider was on the clock? 
  • Was the injury the result of activity the hospital hired the doctor or provider to perform? 
  • Did the hospital benefit in some way from the activity the doctor or provider performed at the time of the injury? 

For instance, if a patient sustained an injury during surgery that the hospital hired the surgeon to perform, the courts may very well have the hospital assume liability for the injuries. However, if a provider injured a patient while performing a procedure at home and for his or her own benefit, he or she may be solely accountable. 

To defend itself against vicarious liability claims, the hospital must prove that the negligent health care provider did not act within the scope of employment. It may also argue that the provider is not an employee at all but rather, an independent contractor. Employers are not liable for the negligence of independent contractors.