Vicarious Liability

July 24, 2019

$50.00

Key Points

 

  • Carefully written collaborative practice agreements can help limit vicarious liability risks and clarify nonemployment or non-agent relationships, even in full practice authority states.
  • Vicarious liability is not to be confused with situations in which there is more than one care provider of a single patient, each being sued for his or her own contribution to the damages.
  • Not only is an employment or agency relationship an essential factor in making the determination of vicarious liability, but the specific allegation of an act or omission must relate in some way to the employment or agency relationship.

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Description

When are physicians vicariously liable for damages arising from acts or omissions made by a midwife? The growth in midwifery-led models of team-based care necessitates all stakeholders have a clear understanding of vicarious liability. This often-misunderstood legal principle is commonly asserted as a barrier to establishing physician/midwife collaborative relationships. Vicarious liability is a legal principle that makes one liable for the wrongdoings of another who is acting on their behalf. Most often this form of liability arises where employers are held liable for damages done to others by an employee. Analysis from an updated and comprehensive caselaw review shows few cases involving midwives and vicarious liability. This finding is consistent with prior research by these authors in 2007 and serves as validation that physician/midwife practice relationships have not created an increase in liabilities. Additionally, research continues to confirm that a collaborative practice agreement does not create any unique vicarious liability risk and that the collaborative practice relationship is different from an employer/employee relationship. State-regulated collaborative practice agreements for midwives, whether licensed in a state that acknowledges full practice authority for midwives or not, do not create the required employment/agency relationship needed to establish vicarious liability. This article offers important recommendations for midwives and those with whom they collaborate, including how both parties can best describe their relationship in contractual arrangements. Without an employment or agency relationship, vicarious liability simply does not apply.

© Grow Midwives, LLC 7.13.2019