How vicarious liability works in medical malpractice suits
When patients file medical malpractice lawsuits in New York, they could seek compensation from more than just their physicians under the common law theory of respondeat superior. This means that hospitals could be deemed vicariously liable for the negligence of the physicians that they employ. The theory may apply to other negligent employees as well.
For the respondeat superior theory to apply, the employees have to have acted negligently within the scope of their employment. Hospitals could be sued for vicarious liability if the patients were injured while their employees were being paid for time worked, while their employees were doing what they were hired to do, and while the hospitals were benefiting from their employees' actions.
Hospitals are often vicariously liable for surgical errors because the actions usually fall within the requirements of their employment. This is typically the case for injuries that result from the treatment that hospital physicians implement while they are working on the clock. The same could also happen when nurses or other medical staff are negligent on the job. However, sometimes patients are injured because of negligence when they go to see their primary care physicians. If a staff member of the doctor's practice is the cause of the negligence, the affected patients could file medical malpractice lawsuits against that staff member. The practice, including the doctor, could be held vicariously liable as well if the staff member was working within the scope of employment.
For example, if a surgeon leaves a medical tool inside of a patient after surgery, the surgeon and health care facility may have to pay for the surgery required to remove the tool. The patient might also receive compensation to help the patient move forward after the unexpected surgery.
Source: Findlaw, "Vicarious Liability", January 07, 2015