Medical Malpractice News

The Vicarious Liability of Physician Malpractice – Am I Responsible?

Tags: | Comments: 0 | December 29th, 2011

Could you or your business be held liable for someone else’s medical error or omission?  Short Answer: Yes.  This is called vicarious liability.

What follows is an explanation of how you could be found vicariously liable for someone elses’s wrongdoing whether or not you have knowledge of the act and how you can ensure your protection against these often overlooked situations.

How Can I Be Considered Vicariously Liable?

Often times hospitals, physician groups, healthcare entities, and even independent employer-physicians end up being named as a co-defendant in a case with an employed (or contracted) physician and/or mid-level provider. The claim typically alleges liability on the part of the employer due to the employed provider acting on behalf of the employer as “agent, servant, or employee.”  This is mostly evident when it is determined employer-entity did maintain or should have maintained control over the employed providers scope of work or duties.

Does My Insurance Policy Cover Vicarious Liability?

Every medical malpractice insurance policy will vary as to how it will respond to claims for vicarious liability.  Most policies will include coverage for “low-level employees” (i.e. non-clinical employees and/or those without an advanced degree).  Some policies will automatically contemplate vicarious liability coverage for all no matter the degree level; however, some policies will either explicitly exclude it or remain silent with regards to vicarious liability.

It is important to note that with independent contractors, (while rare) your entity could be found vicariously liable for the negligent acts the contractor performs on your entity’s behalf.  If the contractor is insured on a separate policy, whether or not it is with the same insurance company, your entity may not be afforded any coverage for the contractor’s acts since he/she is not a named insured on the entity policy.  In order for the entity to have coverage in this situation, the contractor must be named on the entity’s policy as an additional insured for vicarious liability with respects to the work he/she does on the entity’s behalf.

Still Unsure?  Questions?

Due to the varying policy language and coverage triggers, it is very important that if you think you are exposed to potential vicarious liability that you review your policy carefully to assess exactly how your policy will respond.  If you are unsure, contact your broker or an representative to discuss this area of concern.