Vicarious Liability Essay

I.  Case Summary of Pope v. Winter Park Healthcare Group, Ltd

The parties in this suit are Preston and Ginger Pope and the Winter Park Healthcare Group Limited.  The spouses Pope filed a medical malpractice suit against Winter Park, Dr. McMahan, and Dr. Wolford.  Plaintiffs claimed that the hospital is vicariously liable for the negligence of Dr. McMahan who was responsible for conducting an untimely and erroneous resuscitation on Tyler Pope, the newborn child of the plaintiffs.  As a result, plaintiff’s son developed permanent brain damage.

The spouses Pope argued that when Mrs. Pope was admitted to Winter Park Hospital for the delivery of he child, an implied contract was created between them.  The latter is therefore bound under the contract to provide her with the medical or surgical treatment or procedure she and her newborn son may need regardless if the physician is merely an independent contractor.  On the other hand, the hospital argued that it could not be held liable to the patient because the physician was an independent contractor as indicated in the patient consent form which was acknowledged and signed by the patients at the time they sought the services of the hospital

According to the Court of Appeals, the consent form signed by the plaintiffs constitutes an express contract that the physicians practicing at Winter Park are independent contractors and not its employees or agents.

 There is however nothing in the consent form that says that the hospital will be discharged from any liability in case of any negligent act of the physician.  Although the spouses acknowledged that the physician is an independent contractor this does not mean that the plaintiffs agree to discharge from hospital from its contractual obligation (“Hospitals May be Held Liable for Independent Contractor’s Negligence, 2006, p.2).  Delegation of duty does not mean discharge from responsibility.  Thus, although the use by hospitals of independent contractor may eliminate the respondeat superior liability it does not however relieve the hospital from any duty it has undertaken based on the contract.

II. There is vicarious liability when a person is not only liable for torts committed by himself but also for torts committed by others with whom he has a certain relationship and for whom he is responsible.  This is also known as the doctrine of imputed negligence in the sense that even if the person or company is not negligent per se but the law still treats the person or company responsible such as an employer being held liable for the tort of an employee (Susan Leung, 2004, p.1).  Thus, vicarious liability is defined according to Black’s Law Dictionary as “the imposition of liability on one person for the actionable conduct of another, based solely on the relationship between the two persons; indirect or imputed legal responsibility for the acts of another; for example, the liability of an employer for the acts of an employee, or, a principal for the torts or [actions] of an agent.”

III. The question on the existence of employer-employee relationship is important in determining vicarious liability (Andrew P. Hallowell, 2007, p.1). For a plaintiff who seeks to file a suit against a health care organization, he must allege and prove that there exists an employer-employee relationship between the physician and the hospital.    For the health care organization which seeks to exculpate itself from any liability, it must prove that there is no employer-employee relationship and that the physician is merely an independent contractor.

For purposes of determining the presence or absence of employer-employee relationship, the plaintiff should be guided by the following tests.  The health care organization is the employer if it is in charge of the selection and engagement of the employee, the payment of wages, the power of dismissal and the power to control the means and methods of doing the work.  The strongest test is the last factor which is the control test (Ernest Badway, 2007, p.1).

If the hospital controls the time when the physician is required to report for work and directs the means and methods in the performance of his work, pays his wages and has the power to terminate the physician then there is employer-employee relationship.  If on the other hand, the physician is not controlled according means and manner of doing his work but only on the result such as when he was chosen by a patient to perform a single operation within the premises of the hospital then he is an independent contractor and the hospital is not vicariously liable in case of negligence (Edward D. Shoulkin and Smith J. Tamara, p.1).

You may also be interested in the following: principles of vicarious liability

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