RESPONDEAT SUPERIOR -- WHEN IS THE EMPLOYER ACCOUNTABLE FOR THE ACTS OF THE EMPLOYEE? 

This legal standard, which means “let the person higher up answer,” is sometimes applicable in cases of medical negligence, but the doctrine applies to all torts. However, the tort must have occurred during the scope of the employee’s employment. The theory is that when one is acting within the scope of one’s employment, the employer, as the employee’s agent, is accountable for the acts of the employee. In such cases, a plaintiff may bring action against either the employer or the employee if it can be shown that that the defendant who was responsible for the injury was an employee and not an independent contractor.

In a previous section, we noted the complexity of this area. The evolution of medical practice in the U.S. has made this even more difficult. The once standard independent physician practice has been replaced largely by various professional arrangements, including clinics and multispecialty groups. Some physicians work for hospitals or universities that operate hospitals, others for corporations that operate freestanding clinics, outpatient surgery centers, or are contracted out to other corporations.  For each physician, there are many related health care professionals, including physician assistants, nurses, nurse practitioners, medical assistants, and various technicians. Their working interrelationships bear directly on how agency is defined, thus impacting potential malpractice claims.

In a recent New Jersey case (Estate of Cordero v. Christ Hospital), the hospital was found to have held out the defendant doctor as its agent. The trial court had found that there was no evidence that the Hospital had held out the defendant physician or had misled plaintiff.  The Appellate Court reversed, finding that the hospital had created a “misimpression of agency” and that the hospital did not take any action to correct it. For example, the hospital never told the patient that he could choose a different physician, if he wished. The Appellate Court found that when a hospital provides a doctor – in this case an anesthesiologist who had no prior contact -- for a patient and when the totality of the circumstances created by the hospital’s action and inaction would lead a patient to reasonably believe that the doctor’s care is rendered on behalf of the hospital, the hospital is presumed to have held out the doctor as its agent.  Further, when the patient accepts the doctor’s care under such circumstances, the patient is presumed to be accepting care in the reasonable belief that that the doctor is rendering treatment on behalf of the hospital.