Patients who are injured by medical malpractice most often sue the individual doctor who was responsible, but sometimes they consider suing the hospital as well. A hospital generally is liable only for malpractice by its employees, which tends to exclude most doctors, although there are situations in which a hospital still may be liable for malpractice by a doctor. On the other hand, a hospital generally is liable for malpractice by other health care providers, such as nurses, anesthesiologists, and technicians. This is because these professionals are usually employed by the hospital directly.
Hospital liability is based on the notion of vicarious liability, or respondeat superior. This holds an entity accountable for careless or incompetent actions by its employees in the scope of their job duties, even if the entity did not act carelessly or incompetently. The plaintiff would need to show that the employee was acting within their employment relationship at the time. This is usually easy to establish, unless a doctor who was not employed by the hospital was supervising the hospital employee. The hospital may not be liable in those cases if the doctor was present when the malpractice occurred and could have prevented it.
Liability for Doctors Employed by the Hospital
More often than not, doctors who work at a hospital are independent contractors rather than employees. This means that the hospital would not be liable for their negligent actions. It cannot be held liable solely on the basis that the malpractice occurred on its property. A doctor who is affiliated with a hospital may or may not be an employee. This is a complex legal test that varies depending on the state.
A doctor may be employed by a hospital if the hospital has substantial control over when and how the doctor practices medicine. For example, a doctor may be considered an employee if the hospital requires him to work on a specific schedule or provides him with a certain amount of vacation each year. If the hospital determines the fees that the doctor charges, they likely will be considered an employee. Any terminology used by either the doctor or the hospital in describing their relationship generally has no impact on whether the doctor is an independent contractor or an employee.
Liability for Doctors Not Employed by the Hospital
If a doctor is an independent contractor, there are a few unusual situations in which the hospital still may be liable for their negligence. The most common exception is when the doctor is an apparent employee of the hospital. To avoid liability, the hospital needs to clearly state on intake forms that the doctor is not an employee. This is not possible in the emergency room setting, however, so patients who receive incompetent treatment from doctors in emergency rooms often can sue the hospital for malpractice. Some states even provide a statutory right to sue hospitals based on emergency room malpractice.
If a hospital allows a doctor to practice at its facility when it knows that the doctor is incompetent, it may be liable for the doctor’s malpractice even if the doctor is an independent contractor. If a doctor formerly was competent but becomes incompetent, the hospital may be liable if it continues to allow the doctor to practice there. (Perhaps the doctor developed an alcohol problem or a mental condition that undermines their ability to practice.)