Medical Malpractice and Respondeat Superior

Judith J. Regan, MD, MBA, William M. Regan, MD

Disclosures

South Med J. 2002;95(5) 

In This Article

Abstract and Introduction

The legal concept of vicarious liability and the Doctrine of Respondeat Superior occurs when the servant (employee) commits a tort or civil wrong within the scope of employment and the master (employer) is held liable although the master may have done nothing wrong. In this article, legal cases are presented to emphasize the importance of these issues, which frequently involve physician extenders and physicians as employers in our current health care climate. Physicians need to be aware of this doctrine in the supervision of their staff and their day-to-day medical practice.

Malpractice is defined as failure to provide professional services with the skill usually exhibited by responsible and careful members of the profession, resulting in injury, loss, or damage to the party contracting for those services. Although accountants, lawyers, and other professionals can be charged with malpractice, the term is most commonly associated with medical professionals.[1]

Most medical malpractice suits are filed as a result of negligence (ie, a type of tort or civil wrong). Negligence is defined by what a reasonably prudent person would or would not do in the same or similar circumstance. Negligence can result from the individual medical provider or from some type of agency relationship that exists between two or more health care providers. In general, when we discuss the relationship between agency and malpractice, we refer to the concept of vicarious liability and the Doctrine of Respondeat Superior.

Under agency principles, the concept of vicarious liability and the Doctrine of Respondeat Superior occurs when the servant (employee) commits a tort within the scope of employment and the master (employer) is held liable though the master may have done nothing wrong.[2]

Once it is determined that the man at work is a servant, the master becomes subject to vicarious liability for his torts.... But his vicarious liability, for conduct which is in no way his own, extends to any and all tortious conduct of the servant which is within the "scope of the employment."

... It has been said in general, the servant's conduct is within the scope of his job or employment if it is of the kind which he is employed to perform, occurs substantially within the authorized limits of time and space and is actuated at least in part, by a purpose to serve the master.

The fact that the servant's act is expressly forbidden by the master, or is done in a manner which he has prohibited, is to be considered in determining what the servant has been hired to do, but it is usually not conclusive and does not in itself prevent the act from being within the scope of employment. A master cannot escape liability merely by ordering his servant to act carefully.[3]

Under Tennessee law, which is in accord with that of most states, a master can be liable for his servant's negligence solely by Respondeat Superior.[4] That doctrine is based on the principle "that the wrong of the agent is the wrong of his employer."[5]

The Doctrine of Respondeat Superior has been used in determining a medical provider's negligence. Tennessee Code Annotated Section 29-26-115 (1980) states that to hold a doctor or other provider liable individually for malpractice, one must show by competent expert testimony "(1) the standard of care, (2) that the defendant deviated from that standard, and (3) that as a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred."[6]

Although many factors lead to a malpractice claim, in the past the major focus by malpractice insurance carriers has been on improving communication regarding services between individual provider and patient as well as adequately documenting these services in the medical record.[7] However, because of the recent changes in health care, the liability of many health care providers has been assigned as a result of their employment relationship with a third party. A physician or other health care provider may be found just as liable for a negative medical outcome that results from another health care provider's negligence. Liability attaches when it is determined that the medical provider exercised control over the negligent provider's means and methods of work. A medical provider's liability for others is solely referred to as the Doctrine of Respondeat Superior and when used is similar to the concept of master and servant or employer and employee under general agency principles.[8]

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