Understanding Vicarious Liability and Implementing Strategies to Reduce Risks
Jeanne E. Mapes, JD, CPCU, CPHRM
Healthcare providers who employ staff members need to be cognizant of the legal concept of vicarious liability. Vicarious liability arose out of the common law theory of respondeat superior, “a legal doctrine . . . that holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency.” 1
| Legal Considerations |
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| Laws related to vicarious liability can vary among states. Healthcare providers should consult with their legal counsel to understand the legal implications of vicarious liability in the states in which they practice. Additionally, a finding of vicarious liability does not negate a finding of direct liability for an employer’s own wrongful or negligent acts, if any occurred. |
The concept of respondeat superior has carried over into modern law, including liability associated with medical malpractice. For example, healthcare providers who employ other healthcare providers can be found vicariously liable for any negligence on the part of their employees within the scope and course of their employment. No direct wrongdoing on the part of the managing physician or dentist is needed for a finding of vicarious liability. (Healthcare providers in supervisory roles also can face allegations of negligent supervision — a type of direct liability that is associated with vicarious liability.)
The reasoning behind holding employers liable is that they have the power to direct how the work is done. Unless the managing provider can prove that the individual was not an employee or agent, or that negligence was not in the course or scope of employment, the employer might be held liable the individual’s actions. Consider the following medical and dental case examples that involved allegations of vicarious liability:
Case 1: A 37-year-old female nurse practitioner who had a soap allergy was treated by an immunologist with regular steroid injections of triamcinolone. The immunologist ordered an intramuscular injection of 60 mg triamcinolone and instructed his certified medical assistant (CMA) to give the dose. The CMA entered the exam room with two large syringes of white liquid. The syringes were not labeled, and the vials were not present. The patient asked whether the CMA was sure that the syringes contained only 60 mg, and the CMA said she was sure of the dose. The patient asked whether the doctor had seen the syringes, and the CMA confirmed that the doctor had seen her with the vials.
The CMA gave the injection, and the patient went to the front desk to check out. Again, she asked the CMA whether she had run the dose size past the immunologist; this time the CMA admitted that she had not. Unfortunately, the CMA failed to notice the strength on the 10 ml vial (60 mg/ml), which meant the correct injection was 1 ml. She injected 10 ml of triamcinolone (600 mg), resulting in the patient receiving 10 times the ordered dose.
The patient suffered side effects of excessive thirst, excessive urination, muscle tightness, and nausea. She missed work for 2 weeks, resulting in a lost-wage claim. The patient also lost her menstrual cycle for 18 months. As a result, she began treatment with a fertility specialist because she had recently married and was hoping to have her first child. The patient developed Cushing syndrome and low adrenal levels as a result of the injection. Additionally, she needed reconstructive surgery to revise the area where the CMA injected the medication.
The patient filed a lawsuit against the immunologist alleging vicarious liability for the negligent actions of the CMA. Of note, in the state in which this case occurred, CMAs are not legally allowed to give injections. Although this didn’t impact the imposition of vicarious liability, it exacerbated the issues in the case. The case was settled in the mid-range, and the immunologist also took care of all of the patient’s medical expenses related to the claim.
Case 2: A 15-year-old female patient presented to a dental practice to have braces removed. A dental assistant used a high-speed handpiece to remove the braces. The handpiece scarred the patient’s teeth and damaged the enamel, resulting in the need for veneers and replacement veneers throughout the patient’s lifetime.
When questioned, the dentist who owned the practice stated that he did not use the device and denied that anyone else in his office had used it on the patient. However, unbeknownst to the dentist, the dental assistant had used the high-speed handpiece at least three times during the removal of braces. The handpiece was kept in the dentist’s surgical suite, and the dental assistant had not asked the dentist before using it.
A lawsuit was brought against the dentist alleging vicarious liability for the wrongful actions of the dental assistant. An expert stated that the notching on the patient’s teeth was consistent with rigorous rotary instrumentation to accomplish orthodontic appliance removal. That testimony, in combination with the dentist’s poor charting, led to a settlement in the high range.
Case 3: The patient was a 52-year-old female who had been the patient of a dental practice for 8 years. While leaving an appointment, she asked the dental office receptionist for refills of her bleach trays. The receptionist gave her the solution, and she left the office.
The patient didn’t use the solution until about 4 months later. She put the solution in her trays and slept with them overnight. Upon awakening the next morning, she had searing pain along her gumline. Ten days later she presented to the dentist’s office and showed him the solution that the receptionist had provided. The dentist determined that it was etching solution with 35 percent phosphoric acid.
The dentist documented that the patient’s teeth looked normal but felt rough. She was scheduled for a recall visit 2 weeks later. At that visit, the dentist documented that the patient’s teeth had a slightly frosted appearance. The patient claimed that the dentist offered to polish the surface of her teeth with a pumice wheel, but she did not feel comfortable with this approach and sought a second opinion from another dentist the next day. The second dentist recommended using MI paste to try to remineralize and restore the surface of her teeth. Other dentists later offered the same resolution.
The patient filed a malpractice suit against the dentist alleging vicarious liability for the negligent actions of the receptionist. She claimed that as a result of the acid, she needed veneers on all of her teeth. She also claimed that she developed granulomatosis with polyangiitis (an autoimmune disorder) and posttraumatic stress disorder from the phosphoric acid exposure. The dentist consented to a settlement in the mid-range.
Vicarious liability may seem unjust in some circumstances, but this doesn’t change the fact that healthcare providers might be held responsible for their employees’ actions. Thus, hiring qualified people, confirming their skills and competency, providing training, and ensuring adherence to policies and procedures are important strategies for reducing risks related to vicarious liability. Additionally, healthcare providers need to make sure that they are delegating appropriate tasks and providing adequate oversight and supervision.
The following strategies can help providers mitigate risks associated with vicarious liability:
- Exercise due diligence when hiring employees, and perform thorough background checks for all staff members. Develop and follow sound credentialing and privileging processes for licensed providers.
- Create written policies and procedures related to various aspects of clinical and nonclinical care, and make sure staff members are educated about them. Engage employees in development and review of policies and procedures to help identify gaps, prevent workarounds, and secure buy-in.
- For clinical staff, ensure that delegated tasks are within each staff member’s scope of practice and expertise. When deciding which tasks to delegate, consider the risk to the patient if the task is improperly performed.
- Monitor employees’ competency with assigned tasks and activities. Thoroughly document competency assessments and any staff education and training.
- Make sure staff members receive training on all equipment and technologies that they will use in the course of their employment.
- Develop a robust staff education and training program that includes education at the time of hire and on a routine basis during the course of employment.
- Make sure that employees receive adequate and appropriate oversight and supervision based on their roles. Policies related to supervision should adhere to state regulatory requirements and factor in organizational considerations and best practices.
- Keep up to date with state scope-of-practice laws for the various types of providers in your healthcare organization.
Resources
For more information about issues related to vicarious liability, supervision, scope-of-practice, and more, see the following MedPro resources:
- Case Study: Delayed Cancer Diagnosis Results in Malpractice Liability for Physician Assistant and Supervising Physician
- Checklist: Supervision of Advanced Practice Providers
- Credentialing and Privileging Advanced Practice Providers
- Developing Effective Telephone Triage Protocols in Healthcare Practices
- Navigating Scope-of-Practice Risks for Advanced Practice Providers
- Risk Management Review: Patient Suffers Cardiac Arrest and Severe Injuries Following Routine Outpatient Surgery
- Risk Q&A: Scope of Practice for Medical Assistants
- Risk Resources: Advanced Practice Providers
1 Legal Information Institute. (n.d.). Respondeat superior. Cornell Law School. Retrieved from www.law.cornell.edu/wex/respondeat_superior
