Proving the Hospital Is Liable in a Medical Malpractice Case

Say you're admitted to the hospital for a medical procedure. During the procedure, the doctor negligently (carelessly) causes you a severe injury. Is the hospital on the hook for the doctor's negligence?

You might be surprised by the answer: Probably not. Chances are that the doctor isn't a hospital employee. As we'll see, an employer-employee relationship is one of the keys to holding the hospital legally responsible for a doctor's misconduct.

Let's explore when and how a hospital can be liable for medical malpractice.

(Learn the basics of a medical malpractice claim, including how to prove liability and the damages you can collect.)

When Is a Hospital Legally Responsible for Medical Malpractice?

In general, a hospital can be found legally responsible for medical malpractice (also called "medical negligence") in two situations:

• when a hospital employee, or someone who appears to be a hospital employee, is negligent, and
• when the hospital itself does something that's negligent, like giving an incompetent doctor staff privileges.

A Hospital Must Answer for Its Employees' Negligence

Most often, an employer is responsible for the negligent job-related actions of its employees. This legal rule is called "respondeat superior," which means "let the employer answer." It applies to all kinds of employers, including hospitals.

Under respondeat superior, the employer (in our case, a hospital) hasn't acted negligently. Instead, it's liable for an employee's misconduct simply because of the employer-employee relationship.

Were You Hurt by a Hospital Employee?

The first question you need to answer if you're injured at a hospital is: Was I hurt by a hospital employee? Typically, nurses, technicians, and non-physician staff members are hospital employees. If one of these workers negligently causes you harm, the hospital is probably responsible.

Was the Negligence Related to Your Care?

The second question you'll need to answer is: Was the employee's negligence related to my medical care? If so, then the negligence fits under the heading of "medical malpractice." For example, suppose a nurse negligently gives you the wrong medication, causing an injury. Clearly, that carelessness had to do with your medical care. That's medical malpractice (or more accurately, "nursing malpractice").

But what if a maintenance employee negligently fails to put up warning signs after mopping the floor and you slip and fall, hurting your ankle? That's probably ordinary negligence, not malpractice. The hospital is still responsible for the worker's carelessness. But because it's a slip-and-fall case, you likely won't have to deal with the challenges or special rules that apply to a malpractice case.

Doctors Usually Aren't Hospital Employees

Most doctors are independent contractors, not employees of the hospitals where they treat patients. Respondeat superior usually doesn't apply to an independent contractor's negligence.

What's the difference between an employee and an independent contractor?

Employees vs. Independent Contractors

The difference comes down to this: An employer has the right to control how an employee does the job. The employer isn't concerned with how an independent contractor does the job, as long as the work gets done in an acceptable way. Employers train, supervise, direct, and control employees. They don't exercise the same oversight of independent contractors.

Things to Look For

Here are a few things to look for when you're trying to figure out if your doctor is a hospital employee or an independent contractor.

• Your admitting paperwork. Check the fine print on your admitting forms and informed consent disclosures. Often, the hospital will explain that treating physicians are hospital contractors, not employees.
• The doctor's identification badge. If the doctor's name tag or identification badge has the doctor's name followed by the name of the doctor's practice group (for example: "Jane Doe, M.D., South Tampa Emergency Physicians, LLC"), that likely indicates an independent contractor relationship.
• Control over working hours. Does the hospital dictate the doctor's working hours and vacation time? This kind of control is a factor pointing to an employer-employee relationship.
• Fees and billing. If the hospital sets the doctor's fees and bills and collects them, the doctor is probably a hospital employee. By contrast, if you get a bill from the doctor's office in addition to the hospital bill, the doctor is almost certainly an independent contractor.
• Signage. Occasionally, you'll see signs in the hospital disclosing that physicians are contractors (for instance, "Emergency care physicians are employed by or affiliated with South Tampa Emergency Physicians, LLC.").

When the Doctor Appears to Be an Employee

Sometimes the hospital doesn't do enough to make it clear to patients that physicians are independent contractors. Without sufficient disclosures, if a doctor reasonably appears to be an employee, the law might treat the doctor as an employee.

Emergency departments often pose special problems, especially when a patient arrives unconscious, badly injured, or seriously ill. There won't be time for disclosures, and even if there were time, they'd probably be ineffective. A doctor's independent contractor status is less likely to shield the hospital from liability for negligence in emergency care.

Hospital Gives an Incompetent Doctor Staff Privileges

A hospital—like anyone else—is legally responsible for its own negligence. When a hospital negligently gives staff privileges to an incompetent or dangerous doctor (or negligently allows an incompetent or dangerous doctor to remain on staff), the hospital can be held liable for any resulting harm.

Suppose a doctor developed an opioid addiction. Hospital management either knew about it, or it was so obvious that management should have known about it. The doctor made a critical error that caused a patient serious harm. On these facts, the hospital's negligent failure to suspend or revoke the doctor's privileges contributed to the patient's harm. The hospital will be held responsible for its share of the fault.

The plaintiff (the injured person who's bringing a lawsuit) must prove that the hospital failed to implement or follow proper procedures to investigate and take action against the impaired doctor. Usually, this means comparing the hospital's actions (or failures to act) with procedures recommended by state or national medical regulatory or accrediting bodies.

Get Help With Your Hospital Malpractice Case

Malpractice cases generally, and hospital malpractice cases in particular, tend to be exceptionally difficult, time consuming, and expensive. On the whole, they're less likely to settle than other kinds of personal injury cases. A hospital malpractice case, in short, isn't one you want to tackle on your own. You'll need experienced legal help in your corner to have the best chance of success.

Here's how to find the right malpractice lawyer for your and your case.