RESPONDEAT SUPERIOR – A SQUISHY AREA

Respondeat Superior is a legal rule that the principal or employer is liable for harm done by agents or employees while acting within the scope of their employment. Jurisdictions in the United States have long recognized this legal standard. The legal theory holds that when one is acting within the scope of one’s employment, the employer may be held accountable for the acts of the employee with respect to third parties. In general, an injured third party has the right to sue either employer or employee if it can be proven that the defendant who was responsible for the injury was acting as an employee and not as an independent contractor.

In practice, and particularly with respect to medical malpractice, this can be very squishy.  As medicine has evolved, there has developed a large variety of physician practice arrangements, some of which have been designed with consideration toward circumventing such accountability.  In addition to independent practices, some physicians work for clinics and multi-specialty groups, others are employees of hospitals or universities that operate hospitals, others are part of freestanding clinics, outpatient surgery centers, or are contracted out to other corporations.  The relationships of physicians to these organizations are significant in potential claims for medical malpractice.

For example, Dr. A shares an office with two other doctors. Each has his or her own practice and only share physical facilities and clerical staff.  The billing and nursing staffs are separate and physicians do not share patients and do not cross-refer patients. Dr. A is named in a medical malpractice suit brought against one of the other doctors under the RS theory claiming that the defendant was part of a multi-physician practice.

Can Dr. A be held liable?

Probably not. However, what if they did see each others’ patients in emergencies or share responsibilities and staff?

See what we mean????