There is a general assumption that if a person works for a company and an error is caused during their employment, that the employer’s professional indemnity policy will respond. This is because of the principal known as ”vicarious liability”.
Requirements for vicarious liability : employment relationship
- The wrongdoer must be your employee (i.e. an employment relationship must exist).
- The employee’s conduct must amount to a wrongful or negligent act or
- The employee must be acting in the course and scope of his employment at the time he commits the act.
- The course and scope of employment pertain to the time, place and conditions under which the on-the-job accident or wrongdoing
An independent contractor : no employment relationship
An independent contractor is someone who is not under service contract with an employer. This person is free to provide a number of services to a number of persons. Contractors do not depend on the employer’s business for their living. They are not paid to come to work every day but only for the results they achieve. They are not controlled and supervised by the employer in relation to their working hours or methodology of work.
PI policies will not respond to acts of employees who deviate from the duties for which he is employed or where the employees of a practice were subcontractors as the policy belongs to the practice.
Please sure to read the definitions of Insured and the insuring clause for who is covered and when.
Some examples of vicarious liability
Private hospitals clinical and support staff
Departments of health and private health bodies could be vicariously liable for the intentional or negligent wrongful acts or omissions of their clinical health care and support staff.
As chiropractors don’t work for hospitals, they are independent contractors.
With that said, where a number of chiropractors are in business together and have a practice then the chiropractors practice under the name and style of the practice and vicarious liability may arise for the practice if they cause injuries to a patient during their employment with the practice.
Just like any other health care professionals who are held to certain standards of care, chiropractors can be sued for malpractice.
Examples of errors would be complications such as herniated disk or a worsening of an existing disk herniation, vertebral artery dissection followed by stroke, broken neck, paralysis, vicarious liability would not attach to the practice, as the employer where:
- the practice has a policy for example not to treat pregnant women, or people with osteoporosis and those with fragile health, and a chiropractor does so;
- a chiropractor of the practice does work he is not licensed to