Module 4 Case

Vicarious liability is a liability attributed to a person or corporation who has control over or responsibility for another who negligently causes an injury or otherwise would be liable (3 . Whenever an agency relationship exists , the principal is responsible for the agent 's actions . The negligence of an employee acting within the scope of employment is attributed to the employer . An employer is vicariously liable for negligent acts or omissions by his employee in the course of employment whether or not such act or omission was specifically authorised by the employer . To

avoid vicarious liability , an employer must demonstrate either that the employee was not negligent in that the employee was reasonably careful or that the employee was acting in his own right rather than on the employer 's business

Law ruled that a medical malpractice suit against an HMO (health maintenance organization ) may proceed under the theory that the allegedly negligent physician was acting as the agent of the HMO . It means that health care corporations or their executives are responsible for all actions of their employees , because there are agnecy relationship exists . Numerous states have recognized a cause of action for corporate negligence against a hospital for negligence in granting staff privileges to an unfit physician . So the fundamental issues of the problem is medical negligence in the relationship of physician and patient . We should take in the account responsiveness of health care system with focus on physician-patient responsibility , the delivery of health care services , including commencement and termination of the professional relationship , allocation of liability among providers , and recently developed duties to third party non-patients Patient consent , provision of information , therapeutic experimentation and relevant ethical canons grafted upon principles of medical responsibility . The fundamental principle of agency law allows for an employer to be held responsible for the torts of an employee , even if the employer was not negligent . Usually , in the medical setting , a physician is treated as an independent contractor rather than an employee . The HMO is then relieved of any agency-based liability for the physician 's negligent acts (3

Even if a physician is not an actual employee or agent of the HMO , the HMO can still be held liable under apparent agency theory . An ostensible or apparent agency relationship arises when the HMO creates the reasonable impression that the HMO , in addition to the physician , is responsible for the care provided or that the physician is an HMO employee . To support this liability theory , patients usually cite the fact that the HMO held out the physician as its employee by listing the physician as a participating HMO provider in a member brochure or advertisement . But HMOs have some protection - it 's Employee Retirement Income Security Act (ERISA ) preemption (2 . ERISA preemption applies only to claims that an HMO failed properly to administer the health benefits plan , not to claims of HMO negligence . If a plaintiff alleges that the HMO failed to authorize treatment or properly to administer the benefit plan , a court will...