Liability

Topics: Health care, Medicine, Medical malpractice Pages: 0 (5054 words) Published: September 10, 2014
PAM 5540 Health Law Summary for 2/14/2014 Morning Session F. Tort Liability of Healthcare Institutions and Managed Care -Liability for Employees and Non-Employees
-Vicarious Liability (pages 418-431):
-Agency Law and the Test of “Control”:
A. Defining “Employee” in the Hospital Setting
-Hospital vicariously liable for acts of employees such as nurses, technicians, clerks, custodians, cooks, etc.
-However, physicians are often independent contractors using hospital facilities via staff privileges. So, liability of hospitals for physician negligence has been limited. But this is changing as hospitals evolve and vicarious liability doctrine is expanded by the courts. Scott v. SSM Healthcare St. Louis (2002) (page 419)

-Lawsuit over medical malpractice after a teenager required brain surgery and sustained permanent injuries when a physician failed to properly diagnose a brain infection. Lawsuit targeted hospital even though treating physician was not a hospital employee. -Two elements to establish agency relationship: principal must consent (expressly or implicitly) to agent acting on their behalf, and agent must be subject to principal’s control. For a hospital, issue is whether hospital generally controlled, or had the right to control, the conduct of the doctor in the work he did at the hospital. -Examples of factors that established principal-agent relationship: hospital established medical standards for provision of radiological services at hospital, hospital has the right to terminate a radiologist if dissatisfied with their performance, the doctor serving as administrative director of radiology department is provided by the contracting medical practice. (Plus many more) -Courts have found that physicians must be free to exercise independent medical judgment, but this doesn’t preclude finding an employer-employee relationship or principal-agent relationship between hospital and physician. -Courts have found that relationship exists even though...
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