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Markow v. Rosner – Vicarious Liability in Medical Malpractice Lawsuits

An increasing number of hospitals and other health organizations – especially those that sprawl across state lines – have opted for an independent contractor model when they develop their network of physician providers. Not only does this allow these organizations to lower their overhead costs (they don’t have to provide workers’ compensation insurance and other benefits and taxes), but they can also sidestep issues of vicarious liability in the even that doctor commits medical malpractice.Doctor

Vicarious liability – holding accountable one entity for the actions of another – can be asserted when there is an employer-employee relationship under the legal doctrine of respondeat superior, Latin for, “Let the Master Answer.” If the employee is acting in the course and scope of employment at the time of the alleged malpractice, the employer can be held accountable. However, where the doctor is an independent contractor, the hospital/ facility can’t be liable for malpractice (usually). However it’s important to point out there could be two key exceptions:

  • The doctor was misclassified as an independent contractor and is actually an employee. This can be proven in a number of ways, including an examination of the kind of oversight the facility had over the doctor’s schedule, work, pay, etc.
  • The doctor/ hospital/ facility held the doctor out to patients to be an employee/ agent of the facility. In these cases, it doesn’t matter what the actual relationship was. Instead, it matters what the patient reasonably believed. This could be determined by whether the doctor wore the hospital logo, if the doctor had business cards with the hospital’s logo, whether the hospital specifically informed the patient of the doctor’s independent contractor status.

Our Miami medical malpractice attorneys know that while there is no bright-line rule for this, plaintiffs bear the burden of proof and such assertions can be challenging – though certainly not impossible.

In the recent case of Markow v. Rosner, an appeals court in California was asked to consider whether a plaintiff’s presumption of hospital employment of a negligent doctor was reasonable, and thus allowed the hospital to be held vicariously liable.

According to court records, plaintiff sought treatment from a renowned doctor in the region because he was suffering serious and chronic pain following a major car accident. The doctor was in fact employed at a local pain clinic, but was an independent contractor for a local hospital. The doctor’s business cards had the hospital logo and his website didn’t mention his private practice. However, when patient was slated to undergo surgery, he was given a form to sign indicating he understood the doctor was an independent contractor. This provision was in bold letters.

Patient underwent risky spinal surgery and awoke in tremendous pain on his face that ultimately spread throughout his body over the course of the next week. His condition deteriorated, ultimately rendering him quadriplegic and hospitalized for two years.

Plaintiff sued the doctor for negligence and the hospital for vicarious liability. Jurors ultimately found both the doctor negligent and the hospital vicariously liable because patient reasonably believed the doctor to be an employee of the hospital. He was awarded $5.2 million. The appellate court reversed in part and affirmed in part. The doctor was negligent, the court ruled, but the hospital was not vicariously liable because the doctor was not an employee of the hospital and plaintiff did not have reasonable grounds to believe that, given the consent form he signed that clearly informed him of the contrary. As such, his damages will be reduced by 40 percent, or the amount of the hospital’s liability.

If you have been a victim of Miami medical malpractice, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Markow v. Rosner, Oct. 4, 2016, California Court of Appeals, Second Appellate District, Division One

More Blog Entries:

No Child Injuries in Miami School Bus, Man Hospitalized, Sept. 29, 2016, Miami Medical Malpractice Lawyer Blog

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