A few years after a successful abdominal surgery, you return to the hospital for a broken rib. During the x-rays, the doctors find out that there's still a clamp inside of you! You can't remember who the operating surgeon was, only the hospital where you had the surgery. Now, the doctors are telling you that you have to get the clamp removed. Who is going to pay for this? Will the hospital, or the doctor? In many medical malpractice cases, questions of whether the hospital or treating physician is responsible are very common. This article covers the basics of and employer's liability for harm caused by employees, called "respondeat superior" or "vicarious liability."

Vicarious Liability Basics

A doctor who has been negligent may not be the only defendant in a medical malpractice suit. The hospital that retained the doctor on its staff can be held vicariously liable for the doctor's negligence under a theory of "respondeat superior."

Respondeat Superior

Respondeat superior, which means "let the master answer," is a legal principle that holds an employer liable for the negligence of its employees in certain circumstances. In order for respondeat superior to apply, the negligent act must have occurred within the "scope of employment." But when exactly is an employee acting within the scope of employment?

Generally, an employer may be held vicariously liable for the negligence of an employee if:

• The injury occurred while the employee was on the clock,
• The injury was caused by an activity the employee was hired to perform, and
• The employer benefited in some way from the activity the employee was performing at the time of the injury.

Since treating patients and performing surgeries are activities that usually fall within a doctor's scope of an employment, hospitals may be liable for any injuries negligently caused by their doctors during treatment or surgery. On the other hand, if a doctor caused an injury while practicing outside of business hours and for her own profit, the hospital that employs her may be off the hook.

Other Types of Cases

Hospitals aren't the only ones who can be held vicariously liable in medical malpractice suits. For example, a doctor may be held liable for any negligence on the part of his staff in carrying out his orders or caring for his patients. Likewise, an attending physician may be held liable for any negligence on the part of interns or medical students under the physician's guidance. In addition, private medical practices may also be held liable for the negligence of their partners and associates.

Defenses to Vicarious Liability

Employers facing vicarious liability suits often defend themselves by trying to prove that their employees weren't acting within the scope of employment. Since employers aren't liable for the negligence of independent contractors, an employer may also argue that the employee wasn't really an employee at all. For example, a hospital may emphasize the limited role it plays in supervising its doctors' work and show evidence of the doctor's staff privileges.

Have an Attorney Review Your Medical Malpractice Claim

If you recovered in the operating room only to discover that someone left a clamp in your abdomen, you probably would want to be compensated for your suffering. But which parties are ultimately responsible and what kinds of damages may you claim from each defendant? Malpractice claims are usually quite complex, but determining vicarious liability can make it even more difficult. Before you hire an attorney, though, you owe it to yourself to have a legal professional review your claim.