Vicarious liability, or respondeat superior, is a legal term that describes how an individual or entity can be held responsible for the negligent acts of another. Vicarious liability is based on the theory that the master should be held responsible for the wrongful or negligent acts of their servants. For vicarious liability to attach, the servant must have been under the control of the master, and the servant's wrongful or negligent acts must have been performed within the scope of the servant's employment.

Employees

If a physician is employed by the hospital, the hospital can be held vicariously liable for the physician's negligence. The plaintiff must show that the physician was employed by the hospital at the time of the alleged negligence and that the negligence occurred within the scope of the physician's employment with the hospital. A negligent act occurs within the scope of employment when it is performed while a physician is doing the work he or she is supposed to be doing. Courts have held, for example, that a physician who sexually assaulted a patient was acting outside the scope of employment.

Independent Contractors

In general, employers are not held vicariously liable for the acts of independent contractors because the employers do not control the manner in which the contractors perform their jobs. Whether a hospital can be held vicariously liable for the negligence of the physicians working in the hospital depends on whether the physician is an employee of the hospital or an independent contractor. Hospitals are not held vicariously liable for the negligence of physicians who are independent contractors. Under the independent contractor theory, hospitals cannot be held liable for medical decisions made by physicians working at the hospital because the hospital cannot control such decisions.

Hospitals can, however, be held liable for the negligence of physicians who are not employees under an "ostensible agency" or "enterprise liability" theory. Hospitals can be liable under these theories where it can be shown that the hospital holds itself out in the community as a provider of medical services and that the patient sought care from the hospital as opposed to from the individual physician. At issue is whether the patient reasonably thought that the physician was an agent of the hospital. Most often, these theories are introduced in cases alleging negligent emergency room care.

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