In the intricate and highly regulated environment of healthcare, understanding legal responsibilities and risks is crucial for medical practitioners and institutions alike. One of the pivotal concepts in this realm is vicarious liability, which can hold medical institutions accountable for the negligence of their medical practitioners. This article aims to elucidate the principles of vicarious liability, the conditions under which it applies, and the significance of ensuring adequate malpractice coverage for medical practitioners.

What is Vicarious Liability?

Vicarious liability, often referred to as employer’s liability, is a legal doctrine that holds one party (typically an employer) responsible for the actions of another (such as an employee) when those actions occur within the scope of their employment. In the context of medical institutions, this means that hospitals and clinics can be held liable for the negligent acts of their medical practitioners who are their employees, including contracted medical practitioners in certain circumstances.

The Legal Framework in South Africa

In South Africa, vicarious liability is grounded in common law and the concept of agency. According to this principle, an employer can be held liable for the wrongful acts or omissions of their employees if:

  • the employee was acting within the course and scope of their employment;
  • the employer had the right to control the employee’s actions;

This principle is underscored by the notion of respondeat superior (let the master answer), which places responsibility on the employer for the actions of their employees.

Vicarious Liability and Medical Practitioners

The application of vicarious liability in medical settings can arise in various scenarios:

Employee-Physicians: When a doctor is employed by a hospital, the institution may be vicariously liable for their negligence. For instance, if a hospital-employed surgeon makes an error during surgery, the hospital can be held accountable.

Independent Contractors: Even if a doctor is an independent contractor, the hospital may still be vicariously liable if it exercises significant control over the contractor’s work. For example, if a hospital dictates the specific procedures and protocols that a contractor must follow, it can be considered as having control over their actions.

Agency Relationships: If a hospital has an agency relationship with a medical practitioner, where the practitioner acts on behalf of the hospital, vicarious liability can also be established.

To hold a medical institution vicariously liable, a plaintiff must prove that the medical practitioner was negligent and that there was a sufficient connection between the practitioner’s actions and the institution.

Contracted Medical Practitioners and Vicarious Liability

A common misconception is that institutions cannot be held liable for the actions of contracted medical practitioners. Although the independent-contractor defence traditionally shields institutions from liability for the actions of nonemployee medical practitioners, recent legal developments suggest this defence is weakening, expanding the scope of vicarious liability. In the English case, Barclays Bank Plc vs. Various Claimants [2018], Barclays Bank hired a doctor for pre-employment medical examinations, during which the doctor sexually assaulted 126 candidates. The claimants argued that Barclays was vicariously liable, while Barclays contended that the doctor was an independent contractor, not an employee. The court then examined if the relationship was “akin to employment,” finding the doctor’s role integral to Barclays’ hiring process. In addition, the wrongful acts occurred during duties related to the doctor’s role for Barclays and consequently the court held Barclays vicariously liable, ruling that the relationship was indeed akin to employment.

This case is significant for South African medical practitioners because of the similarity in common law between South African and the UK. South African courts often reference UK case law and South African courts have shown a tendency to extend vicarious liability to principals for subcontractors’ actions, as seen in Langley Fox Building Partnership (Pty) Ltd vs. De Valence 1991. Medical institutions must accordingly anticipate potential vicarious liability from both employees and contractors because, even without direct employment, if a contracted doctor’s negligence can be linked to the institution, the latter can be held liable for resulting damages or injuries.

Mitigating Vicarious Liability in Medical Institutions

Medical institutions face significant risks due to vicarious liability but can protect themselves through several proactive
measures. Key steps include:
1. Reviewing Contractual Relationships
Assess if relationships with practitioners are “akin to employment.” Contracts should require practitioners to maintain adequate indemnity cover, and failure to enforce these clauses can result in liability for the institution.
2. Ensuring Adequate Malpractice Indemnity Cover
It is crucial for all medical practitioners, whether employees or independent contractors, to have sufficient malpractice indemnity cover. This mitigates various risks:

  • Breach of Contractual Obligations: Institutions must enforce contracts requiring adequate malpractice coverage.
  • Breach of Statutory Duties: South African law mandates institutions to ensure the competence and fitness of their healthcare providers, including verifying malpractice coverage.
  • Negligence: Institutions may be deemed negligent if they fail to ensure adequate coverage, exposing patients to uncompensated harm.
  • Vicarious Liability: Institutions can be held vicariously liable for practitioners’ actions, making adequate
  • coverage a critical risk management measure.

3. Implementing Comprehensive Policies for Risk Management

  • Verification Processes: Regularly verify the malpractice coverage of all medical practitioners, including contracted doctors.
  • Contractual Clauses: Include clear obligations in contracts for practitioners to maintain and provide proof of sufficient malpractice indemnity cover.
  • Training and Awareness: Educate medical practitioners on the importance of malpractice coverage and the legal implications of insufficient coverage.
  • Monitoring and Auditing: Continuously monitor and audit compliance with malpractice coverage requirements to ensure ongoing protection.

By implementing these measures, medical institutions can significantly reduce their risk of vicarious liability and ensure high standards of patient care and legal compliance.

Conclusion

Vicarious liability in medical institutions is a critical aspect of healthcare law that underscores the importance of institutional oversight and risk management. By understanding the principles of vicarious liability and the conditions under which it applies, medical institutions can better protect themselves and their patients. Ensuring that all medical practitioners, whether employees or independent contractors, have sufficient malpractice coverage is not only a legal obligation but also a moral imperative to uphold the highest standards of patient care and safety.

Prepared for Genoa Underwriting Managers by Dr Marietjie Botes