OVERVIEW

Definitions

Vicarious liability is liability that a supervisory party bears for the actionable conduct of a subordinate or associate because of the relationship between the two parties. There are two types of vicarious liability: respondeat superior and agency.

Respondeat superior involves liability that an employer bears for the negligent actions of an employee.
Agency liability refers to liability for the negligent actions of nonemployees who are perceived by the plaintiff to be the employer’s agent or acting on the employer’s behalf. For example, hospitals may be partially liable for negligent actions of physicians, even though the physician may not be a hospital employee.

General Principles

The medical education landscape is filled with individuals who have a wide variety of training and experience, from seasoned attending physicians to younger faculty, resident physicians, and medical students. An employment relationship results in the most common type of vicarious liability in the medical education setting. In this type of case, a hospital or health care organization that provides graduate medical education may be sued for the negligence of its employed resident physicians. Additionally, in some instances, supervising physicians may be held liable for the actions of those they supervise, even if they are not also employed by the hospital, as supervising resident physicians is an inherent part of their job. Historically, the attending physician was held responsible for the actions of those under his supervision through a legal doctrine known as “captain of the ship”. This doctrine took root from the operating room where the surgeon could be held liable for negligent anesthesia under their capacity as team leader. However, courts today have largely rejected this doctrine and instead applied liability directly to the employer. However, these claims are more likely to be successful against private attending physicians than they are against employee attending physicians because in the latter case, the employing institution tends to eclipse the attending physician as chief controller and beneficiary of the resident physician’s employment.

Despite concerns, the emergence of mid-level providers (e.g., APNs, PAs) has not led to significant increases in malpractice lawsuits or insurance premiums. However, the physician is ultimately responsible for quality assurance, including review and cosigning of charts when statutorily required. Failure to do so may be deemed negligence per se.

A psychiatrist may also be liable for the actions or inactions of non-medical psychotherapy providers, including psychologists and social workers, if the physician’s practice employs them or they are perceived agents of the psychiatrist. In regards to psychiatric residents in training, supervisors may be liable for negligent supervision, such as not knowing what the resident is doing, not teaching, failure to meet regularly for supervision, and failure to provide oversight. Finally, supervisory negligence may also occur if the supervisor instructs the resident to do something that is contraindicated or fails to correct and confront resident errors.

Jurisdictional Considerations

Negligence torts are under the jurisdiction of state courts. There are variations in the statute of limitations across states, and there are also jurisdictional differences regarding vicarious liability. For example, Canadian courts maintain that physicians are independent contractors of hospitals and therefore more likely to be named individually in lawsuits involving negligent care by those they supervise. However, recent policies that tie remuneration to performance, increased board or management involvement in privileging, and shared accountability for quality between physicians, boards, and other providers may prompt the courts to shift vicarious liability for physician negligence to the hospitals who credential them.

Additionally, the emergence of “physician extenders” (advanced practice nurses [APNs] and physician assistants [PAs], nurse practitioners [NPs], etc.) has further complicated the concept of vicarious liability for supervising physicians. Physicians may be held liable for the actions or inactions of mid-level providers due to negligent hiring practices (i.e., failure to screen for competence in performing assigned tasks) and failing to supervise. State laws vary tremendously on supervisory requirements with some states requiring that the supervisor be physically present and others not. Additionally, in some jurisdictions the mid-level provider will be held to the same standard of care as the supervising physician while in other jurisdictions they are held to the standard of a similarly trained mid-level provider.

CLINICAL SCENARIOS

Scenario: A psychiatric resident is treating a depressed patient in the outpatient setting who presents with suicidal ideation and a suicide plan. The resident calls his supervisor but is unable to reach the supervisor because the supervisor is on vacation. The resident gets the patient to sign a “no suicide contract”, initiates treatment with a SSRI, and schedules a follow up appointment for three days. In the meantime, the patient dies from suicide.

In any supervisory relationship, open lines of communication between a supervisor and supervisee are essential to prevent medical errors.

No suicide contracts have little value in preventing liability in cases of death from suicide. Supervisees, especially medical students and residents, must feel comfortable in approaching supervisors with questions or when seeking advice, without fear of being judged harshly for knowledge deficits.
In the example above, failure of the supervisor to schedule vacation coverage for supervisory duties could be grounds for liability.

ADDITIONAL TIPS

In deciding to employ a physician extender (i.e., mid-level provider), the physician should first explore the liability implications and become familiar with governing statutes and regulations.
When accepting a teaching appointment with a graduate medical education provider or academic center, the details regarding liability for supervision and malpractice insurance coverage should be made clear.

Documentation Tips

Medical student notes and resident notes should be reviewed periodically by the supervisor to assure accuracy and completeness. Notes that are not finalized may be altered by the supervising physician, but the addition of an addendum with corrective or missing information can also be useful if the note was already finalized.

REFERENCES

West JC. Vicarious liability: Is it an issue for your organization? J Healthc Risk Manag. 2016 Jul;36(1):25-34.
Kachalia A, Studdert DM. Professional liability issues in graduate medical education. JAMA. 2004 Sep 1;292(9):1051-6.
Bernard CD. Physician liability for the actions of mid-level providers. Med Econ. 2015 Feb 25;92(4):43-5.
Recupero PR, Rainey SE. Liability and risk management in outpatient psychotherapy supervision. J Am Acad Psychiatry Law. 2007;35(2):188-95.
Hardcastle L. Institutional vicarious liability for physicians: have we reached the tipping point? Healthc Manage Forum. 2010 Autumn;23(3):106-13.

Additional Reading

Centers for Medicare & Medicate Services: Advanced practice registered nurses, anesthesiologist assistants, and physician assistants. Available from: https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/Downloads/Medicare-Information-for-APRNs-AAs-PAs-Text-Only.pdf, April 2020

Overview | Clinical Scenarios | Additional Tips | References

By Richard Frierson, MD