Generally, a person is not liable for an independent contractor’s negligence. This relates back to the old line of cases—I’m talking back to the 1800s—regarding the master-servant relationship. This is where the employer or master has hired or sent the servant or employee on tasks for the benefit of the master. When this occurs, the master will be liable for the servant’s negligence. This is known as vicarious liability and respondent superior.
But when the master hires an independent contractor, the master does not have control over the independent contractor. Rather, the master only hires the contractor to perform a task, and the contractor performs the task as he or she sees fit. In this situation, there is no liability on the master; only on the independent contractor.
However there are some exceptions to this general rule where the master will still be liable for the acts of a independent contractor’s negligence. These include where the master retained control over the work, where the work is inherently dangerous, where the law imposes a nondelegable duty on the master, and there the job description is so related to the negligent or intentional tort that is normally generates “friction.”
When it comes to healthcare, hospitals regularly contract out help. There are plenty of independent contractors in a hospital setting. Everyone from the sterilizing team to laundry services. Even other nurses, such as traveling nurses, are under contract. Some anesthesiologists are even just under contract and not employees. Others have privileges and can work there, but do not always necessarily schedule procedures there.
So does this mean that an independent contractor cannot be liable for medical malpractice?
Can a hospital escape liability for medical malpractice caused by one of its contractors?
NO and NO!
An independent contractor can absolutely be liable for medical malpractice. And the hospital has a duty of care to ensure that they are competent and able employees who will NOT commit gross negligence. This is called negligence hiring.
Also, many hospitals will still be liable for the negligence of an independent contractor if that hospital gave permission or privileges to work there.
This is only fair! Why should the victim not be able to hold a hospital liable for negligence when the victim has no idea what provides are contractors, employees, or have privileges.
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.