Most people assume that surgeons are employed by a specific hospital and if the surgeon commits malpractice that the hospital will become automatically responsible for the surgeon’s negligence under the legal theory of vicarious liability.  Under most common forms of employment an employer is responsible for acts of negligence committed by their employees.  Vicarious liability normally applies when the employee negligently performs their duties as defined by their employment and causes another injury.  This is not the usual case with a surgeon and a hospital.

The common relationship between a surgeon and a hospital is that a surgeon is granted privileges at a specific hospital which allows them to perform specific types of surgeries at that hospital but the surgeon does not work for the hospital.  A patient is charged a fee for the surgeon and a separate fee for the hospital.  If a patient undergoes a surgical procedure by a surgeon of their choosing at a specific hospital, under most circumstances the hospital will not be liable for malpractice committed by the surgeon during the surgery.  Like all laws there are multiple exceptions to the common rule.

If a patient is admitted through the emergency room and provided a surgeon by the hospital, not of the patient’s choosing, under most circumstances, that hospital will be liable for the negligent acts of the surgeon.  There are always exceptions, but a hospital that directs a patient to a specific surgeon opens itself to liability.

If a surgeon perform an act which is considered to be extremely negligent it can impute a duty on the hospital to step in and take control of the situation.  In this scenario a hospital may be liable for failing to take action when it knows that a surgeon committed a negligent act and that surgeon is continuing to provide negligent treatment to a patient.  A hospital has a duty to step in and change a course of treatment if no reasonable medical professional would continue to follow the orders of the negligent surgeon.  Most hospitals will try to shield themselves from liability by claiming that they were just following the orders of the surgeon and are therefore not liable for his acts of malpractice.  This can be overcome by either proving that the surgeon’s acts of malpractice were so contrary to the normal standard of care that it would be unreasonable to follow the surgeon’s instructions; or if the record indicates that the hospital did not follow the orders of the surgeon and thereby created their own acts of negligence.

Also, if while the patient is in the hospital an act of malpractice is committed by an employee of the hospital i.e. a nurse, phlebotomist, staff radiologist; that hospital can be liable for the acts of its employees.  The nurses, staff and technicians of the hospital are employees and if the malpractice is committed by one of these people the hospital will maintain liability.

Certain surgeons do maintain an employee/employer relationship with the hospital.  A lot of times surgeons who hold specific titles at the hospital such as chiefs of a specific department are employees and the hospital will be responsible for their acts of negligence.  Also, surgeons working directly in an emergency room are often times employees of the hospital.  A prospective plaintiff must probe into the relationship between the surgeon and hospital prior to filing a lawsuit to determine what if any liability may rest on the hospital.

If you feel you have been the victim of medical malpractice please visit www.rlgfirm.com for a full legal evaluation.  We work very closely with prominent medical experts to determine if your case has merit.