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Vicarious liability in medical malpractice cases

A person who has suffered an injury due to medical malpractice in Arizona may be able to hold both the physician as well as the physician's employing facility or hospital liable for the physician's negligence. Hospitals and medical facilities employing physicians may be held vicariously liable for the actions that caused the injury in some cases.

Vicarious liability arises from the application of the legal principle of respondeat superior that arises out of common law. Under this principle, if the doctor was operating within the scope of employment when the negligent action or medical error that caused the injury took place, the employing hospital may also be responsible.

To show that the actions were within the scope of the doctor's employment, the doctor must have been working within scheduled hours and must have been employed by the facility at the time. In addition, the facility must have received benefit from the physician's procedure. Hospitals will often try to argue as a defense that the doctor merely had visiting privileges and was not an employee.

Establishing the hospital's vicarious liability for such things as obvious surgical errors and other medical errors may be surprising complicated. It may be necessary to establish evidence in order to overcome such defense tactics as pointing to the physician's staff privileges or arguing that the physician was working outside of his or her hours or as an independently employed contractor for his or her own personal benefit. It may be thus highly beneficial to injured people to seek the assistance of a medical malpractice attorney who is familiar with medical documentation and the manner in which the particular hospital's employment policies normally work.

Source: Findlaw, "Vicarious Liability", December 30, 2014

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