Vicarious Liability: What is it, Should it Impact the Physician/Midwife Relationship?
March 25, 2018
By Joseph Booth
As healthcare providers begin to work in collaboration with other professionals occupying similar, but differing, roles, they are often afraid that they will become liable for the actions of their collaborators. This is commonly known as vicarious liability and it is a topic providers need to understand if they are going to work in a collaborative practice.
Stick with us. We are going to encounter a bit of legal jargon in this article. I promise to break it down into layman’s terms later, but please take time to read the following. An understanding of this topic is very helpful for business-minded Midwives in their conversations with physician partners.
What is Vicarious Liability?
Black’s Law Dictionary (10th ed. 2014) defines vicarious liability as a “Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties. — Also termed imputed liability.” This source also directs the reader to respondeat superior, “The doctrine holding an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency.”
“The vicarious liability of an employer for torts committed by employees should not be confused with the liability an employer has for his own torts. An employer whose employee commits a tort may be liable in his own right for negligence in hiring or supervising the employee. If in my business I hire a truck driver who has a record of drunk driving and on whom one day I detect the smell of bourbon, I (along with my employee) may be held liable for negligence if his driving causes injury. But that is not ‘vicarious’ liability—I am held liable for my own negligence in hiring that employee or letting him drive after I know he has been drinking.” Kenneth S. Abraham, The Forms and Functions of Tort Law 166 (2002).
So, vicarious liability or respondeat superior, are both representations like an employer/employee relationship and the economic responsibilities one has for their own business, even if the owner of the business did not cause actionable damage, but their employee did cause damage in the course of employer’s business.
What is a Collaborative Practice Agreement?
Physicians and Midwives can protect themselves from issues of vicarious liability by properly structuring their Collaborative Practice Agreement. A Collaborative Practice Agreement is often a prerequisite for a midwife to practice. It sets out what the midwife does autonomously and what happens when the midwife has to consult with the physician. These agreements define the interpractice relationship.
One way to think about a Collaborative Practice Agreement between Physicians and Midwives is to compare it to carpenters and electricians building a house. Carpenters and electricians may help to build the same house, but you would never hold one liable for the work of the other. The same can be true for Physicians and Midwives in collaborative practice.
Even so, Physicians are worried they are going to become liable for the Midwives’ autonomous acts, but this is not the case. In a brief paragraph from the recent 2016 American College Obstetricians and Gynecologists Collaboration in Practice: Implementing Team Based Care publication, authors state that, “health care providers, including Physicians working in team-based care settings may not always be found to have the requisite principal-agent relationship with other health care team members to be vicariously liable for their actions.”
What Does it Mean for Midwives?
In 2010, the American College of Nurse Midwives published An Update on Vicarious Liability for CNMs and CMs in the JMWH.
The abstract states, “The unique placement of Midwives in the healthcare industry prompts renewed consideration of vicarious liability. Generally, vicarious liability is the liability of an employer for an employee’s actions. A review of recent case law over the past decade shows limited case activity and indicates that the certified nurse‐midwife/certified midwife (CNM/CM) roles do not create vicarious liability risks different from any other employee/agent.
The lack of case law signals a lack of dispute over vicarious liability, not a lack of liability. Absent unique statutory provisions, which may be in effect in a minority of states, an employer of a CNM/CM is as liable for the midwife’s negligence committed in the scope of their employment as employers are generally liable for an employee’s negligence. When there is no employment/agency relationship, vicarious liability does not apply.
A collaborative practice agreement is a good example of a non-employment arrangement. Proper contractual documentation of relationships and comprehensive professional liability coverage are necessary to manage this form of liability.”
Further Understanding Vicarious Liability
What does current data show about malpractice rates with non-physician providers? A 2009 study found that between 1991 and 2007, the first 17 years that the National Practitioner Data Bank was in operation, payments were made on behalf of 37% of Physicians, but only 3.1% of physician assistants and 1.5% of nurse practitioners.
The study concluded: “There were no observations or trends to suggest that PAs and APNs increase liability. If anything, they may decrease the rate of reporting malpractice and adverse events.”
A good article to understand the concept of liability exposure is described here, “Whether or not an employer-employee relationship exists depends primarily on whether the employer has the “right of control” over the employee. The right of control at issue is the right to control the details and manner of the work performed by the employee.
In an evaluation of the control issue, the inquiry focuses on whether the employer has the right to control the employee in performing the task at issue. For example, in healthcare claims, the focus is on whether the employer has the ability to control the employee’s provision of evaluation, diagnosis, or treatment services to patients. If no right of control exists, the relationship is an employer-independent contractor relationship and not an employer-employee relationship.
Respondeat superior does not apply when the one employed is an independent contractor.”
Breaking Down Barriers to Team-Based Care
What steps and conversation should be provided when Physicians bring up the issue of vicarious liability as a barrier to team-based, collaborative care?
The first is to define the interrelationships of the “team” in team-based care. Here there are two general concepts, one entity which contracts for services to patients through a multi-disciplinary team of providers. That entity is responsible for the provision of care to those patients and directly assuring those patients are treated within the standard of care for each of the individual professionals as they function with their individual role.
However, most team-based care models reflect a number of entities working in concert to provide services, to the patients. Many models of service, from hospitals to an individual birth center or midwife, provide a gateway to access by these various providers but don’t have an ownership interest in these professionals or entities. While they each appear to be one body, they are different organs each operating with autonomy.
Simplistically, one could look at it this way: If you expected to get money from the transaction and something goes wrong, you should expect to be economically responsible.
Consider the collaborative practice model used in midwifery. Generally, a physician has agreed to collaborate with a midwife or their practice. The Collaborative Practice Agreement does not create a vicarious liability between the two sides. This is because the Collaborative Practice Arrangement does not economically tie the independent relationship between the parties to the agreement, but does discuss when they would stand apart and when they would work together as peers.
Team-Based Care is More Robust, Decreases Liability
As noted at the outset of the article, vicarious liability makes you responsible for the actions people undertake as they do something for you. But if they are an independent entity not working for you, this responsibility does not exist.
Each individual economic group, for example a physician or their practice, will be responsible for their own actions that deviate from the standard of care and cause harm, or failures to fulfill a duty to act.
As the Modern Medicine quote above points out, multidisciplinary approaches to health care don’t increase liability and may actually decrease liability.
While we still remain responsible for our actions and for the actions of those we use as our agents or employees, respecting the unique perspective of other professions as they act autonomously improves the odds that the services rendered to the patient are well considered and more robust. This collaboration has every reasonable prospect of being better care than any individual perspective could ever render.
If you enjoyed this article on vicarious liability, you can join me on March 29th at 7 p.m. cst. where we will discuss this topic as well as answer questions related to collaborative practice. Sign up for the webinar titled “Understanding Vicarious Liability in Collaborative Practice” by clicking the link below.