The Hospital Says My Doctor Isn’t an Employee—Can I Still Sue the Hospital?

The Hospital Says My Doct…

When you go into the hospital for surgery or other treatment, you probably think of the people who treat you while you are there as hospital employees. Often that is true; for instance, nurses are usually employed by the hospital. But frequently, doctors are not employed by a hospital in which they offer treatment; they are independent contractors.

Why does it matter whether a doctor is a hospital employee or independent contractor? It all boils down to liability. A hospital has “vicarious liability” for acts committed by one of its employees. As such, if a doctor who injures you is a hospital employee, you can, and should, sue the hospital as well. That is, so long as the physician’s conduct is within the “scope and conduct” of their employment. Medical malpractice committed in the course of a scheduled surgery would be within the scope and conduct of employment; the physician injured the patient while doing his job.

Does that mean that you can’t sue the hospital if your doctor was an independent contractor? Maybe. A hospital can be vicariously liable for a doctor’s action if the doctor is an actual employee. But a hospital may also be liable for a doctor’s medical malpractice if there was “apparent agency.” Apparent agency means that the doctor is not an actual employee of the hospital, but the hospital fails to make that clear: in other words, the doctor appears to be an agent or employee of the hospital.

Is Your Doctor an Employee or an Independent Contractor?

Whether a physician is an employee or an independent contractor hinges in part on the agreement, usually written, between the doctor and the hospital. But there is more to it than that. Even if the agreement says that the doctor is an independent contractor, the relationship between the hospital and doctor may be more like that of an employer and employee. How can you tell?

It mostly boils down to how much control the hospital has over the doctor’s work. The more control the hospital exercises, the more the hospital looks like an employer from a liability standpoint. Here are some of the things a court considers:

  • Does the written agreement between the hospital and the doctor say that the doctor is an employee or an independent contractor?
  • Who decides what hours the doctor will work in the hospital—the doctor or the hospital?
  • Who decides which patients the doctor will or will not treat?
  • How is the doctor paid? Do they receive a fixed salary (which would suggest they are an employee) or do they receive a fee per service performed?
  • Who determines the fees the doctor will charge for services performed in the hospital?
  • Can the hospital discipline or fire the doctor?
  • Are there other indicators that the hospital has control over the doctor’s work?

It is possible that a hospital will characterize a doctor as an independent contractor for purposes of liability, but exercise enough control over the doctor’s work that for all practical purposes, a court would find that the doctor was an employee. In that case, the hospital could still be liable for the doctor’s medical malpractice.

Even if the doctor truly is an independent contractor, however, there are still some situations in which the hospital can be held liable for the doctor’s actions.

When is a Hospital Liable for the Actions of a Non-Employee Doctor?

A hospital may be liable for the actions of a doctor who is not an employee under various circumstances. For instance, if you are treated in a hospital’s emergency room and did not have the ability to sign an admission form telling you your doctor was not an employee, you may still be able to sue the hospital. And, as mentioned earlier in this blog post, if a physician appears to be a hospital employee, and the hospital permits or encourages that impression, the hospital may be liable for the physician’s actions.

A hospital’s liability isn’t always based on a doctor’s negligence. A hospital can be sued for its own negligence in allowing the doctor to work there. Even if a doctor is an independent contractor, if the hospital knew or should have known the doctor posed a risk to patients, the hospital can be sued. For instance, if a doctor has a history of sexually abusing patients, a reasonable hospital would not give that doctor a place to practice. A hospital that fails to properly vet a doctor before contracting with them or granted them privileges despite awareness of risk to patients, can be sued for its own negligence.

It can be very difficult for a patient who has been injured to know whether the doctor who harmed them in a hospital was an employee or an independent contractor. If there is reason to believe that the doctor was an actual employee of the hospital, or that the hospital might be liable under another legal theory, the hospital should be named in the lawsuit. If it emerges that the hospital was not responsible, it can be dropped from the lawsuit. However, if the hospital is not part of the lawsuit and it is later discovered they had liability, it may be difficult or impossible to sue them.

If you have been injured by a doctor at a hospital and the hospital denies responsibility, don’t take them at their word. Consult with an experienced medical malpractice attorney. We invite you to contact Huegli Fraser with any questions you may have.

Blog Disclaimer

The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact a qualified medical malpractice attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a competent medical malpractice attorney licensed to practice in your jurisdiction.