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Who Is Responsible For A Private Contractor’s Mistake?

Private contractors are employed in all types of businesses from Hospitals to Hotels. There are a number of reasons why it may be advantageous to hire a private contractor rather than maintaining the position in-house. Some companies employ private contractors because it is more economical than keeping the position in-house. Others use independent contractors for tax benefits. If you pay independent contractors, you commonly won’t withhold or pay any taxes on payments. One of the other chief reasons other companies hire private contractors is to insulate themselves from liability. Under the theory of vicarious liability, an employer is liable for the acts of the employee if that employee is acting in the course of his (or her) employment. It is often common for hospitals to hire doctors as private contractors to insulate themselves from being vicariously liable for a doctor’s mistake. However, just labeling a medical practitioner as a private contractor and treating them as such does not always insulate a hospital from liability for a doctor’s mistake.

How do I know if my doctor was an employee or a private contractor?

In Kashishian v. Port, the Wisconsin Supreme Court tackled how to determine whether a doctor should be identified as employee or a private contractor. The court criticized the idea that these hospitals could profit off of the doctor’s work while not accepting any responsible for the work stating, “If emergency room doctors do their job well, the hospital succeeds in . . . profiting . . . from the quality of E.R. care . . . . [The] anomaly is [that] the hospital’s escape from liability [when] the quality of care . . . was below acceptable . . . .” The court also pointed out that most folks do not realize that many doctor’s working in the hospital are actually private contractors: “[P]eople who seek medical help through the ER . . . are unaware of the status of the . . . professionals working there . . . .” The court held that the patient’s perception of the doctor’s status would came into play in regards to if the hospital would be liable for the doctor asserting, “[A] patient who is unaware that the person providing treatment is not the employee . . . of the hospital should have a right to look to the hospital in seeking compensation.” The Wisconsin Supreme Court held that if the patient is unaware that the doctor is a private contractor, the hospital will be vicariously liable for the doctor’s actions.

The Florida Second District Court of Appeal has also ruled that a hospital may be held vicariously liable for an agent’s actions if those actions occur “within the scope of the agency”. In Roessler v. Novak, Roessler went to Sarasota Memorial’s ER to be seen by a surgeon. Scans of Roessler were taken in Sarasota Memorial’s radiology department while he was an inpatient. Dr. Lichtenstein analyzed and interpreted those scans because he was the radiologist on duty at the time. An operation was performed on Mr. Roessler’s perforated viscus. Roessler developed serious complications which required two and half months of inpatient treatment. Roessler developed renal failure, a heart problem, systemic sepsis, and numerous brain abscesses which had to be surgically removed. Roessler subsequently filed an action against Sarasota Memorial for medical malpractice.

The Roessler court ultimately held that a hospital may be vicariously liable for the actions of a doctor who is an independent contractor, if the doctor acts within the hospital’s “apparent authority”. They court went on to reason that an apparent authority exists where a contractor makes a representation which is relied upon by a third- party to their benefit or detriment. A contractor’s apparent authority to act on the employer’s behalf can only occur when the employer creates an “appearance of an agency relationship”, and isn’t centered on the purported agent’s actions or a third- party’s subjective beliefs. The court stated that whether a physician had apparent authority to act on behalf of a hospital, or whether an apparent agency existed, is customarily a question of fact for the jury to decide. The court went on to assert that there was plenty of evidence that could sustain a finding of apparent agency between the doctor and Sarasota Memorial Hospital.

Some of the main factors that contributed to the apparent authority were the following: 1) the doctor in question had offices within Sarasota Memorial, and did not maintain offices outside of the hospital grounds; 2 The “private contractors” in question provided all of Sarasota Memorial’s radiological services; 3) When Roessler was admitted to Sarasota Memorial Hospital—the hospital, not the “contractor”—provided the services and doctors that they considered necessary, including radiological services through Sarasota Memorial’s radiology division; 4) Sarasota Memorial Hospital assigned the doctor in question to interpret Roessler’s scans. Clearly, just because a doctor is labeled a private contractor does not mean the courts will treat that doctor as such in regards to liability.

Contact a Florida medical malpractice lawyer today to schedule a free consultation

People who have been injured by the negligence of a medical practitioner are regularly entitled to substantial monetary compensation. In numerous cases, the difficulties associated with medical malpractice can be tremendously serious, so it vital that victims ensure that their legal rights are sheltered by retaining an advocate who has a history of success litigating medical malpractice claims. The attorneys of the Dolman Law Group are accomplished Clearwater medical malpractice lawyers who know how to acquire the compensation our clients deserve. To schedule a free consultation with our attorneys, call our office today at (727) 451-6900.

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