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When is a Hospital Responsible for a Private Surgeon's Medical Malpractice?

Malpractice by Surgeon

Have you ever received multiple bills from a single procedure—from a surgeon, anesthesiologist, radiologist, and a medical facility, perhaps? If so, you're familiar with the concept that a hospital, and the medical professionals who work there, are not a single entity.

Aside from a little inconvenience in paying bills, why should that matter to you? Well, it could matter a great deal if the surgeon or another doctor ends up harming you during the procedure. You know you can sue the surgeon for medical malpractice. But does the facility have any liability for a private surgeon's surgical malpractice? The answer is...maybe.

Does the Hospital have a "Right of Control" Over the Surgeon?

A Latin phrase, "respondeat superior," describes the concept of an employer being responsible for the negligent acts or admissions of an employee acting within the scope of his or her employment. This notion is based on the premise that a business should bear the costs of negligent acts or omissions committed in the course of conducting business.

This is so even if the business, a hospital in this case, was not itself negligent in the selection, hiring, training and supervision of the employee. A hospital's liability in this circumstance would be entirely dependent on the liability of the employee, even if the facility itself acted blamelessly. Therefore, if a surgeon employed by a hospital leaves a sponge inside a patient after surgery, causing severe infection, the hospital would be liable for the surgical error.

But wait—what if the surgeon isn't technically employed by the hospital? What if he or she simply has privileges to admit and operate at the hospital, but doesn't receive a regular paycheck from the hospital? Can the hospital then escape liability based on what seems like a technicality? It all hinges on whether the hospital has a "right of control" over the surgeon.

This question centers on how much control the hospital exercises over a surgeon's performance of his or her tasks. The more input a hospital has into how the doctor evaluates, diagnoses, and treats patients, the more likely that a court will find that the hospital has a "right of control"— and liability as an employer.

If the surgeon's contract with the hospital explicitly states that the doctor is an independent contractor, though, that characterization usually controls. In most such cases, the hospital would not be vicariously liable for the surgeon's actions. However, if it can be shown that the relationship was really more that of an employer and employee, and that the independent contractor label was used only to allow the hospital to escape vicarious liability, the hospital may still be held liable for the surgeon's actions. Even if a court finds that a doctor is a true independent contractor with regard to a hospital, there are some narrow circumstances in which the hospital might be held liable for the doctor's actions.

Assessing Hospital Liability in an Oregon Surgical Malpractice Case

Hospitals know that they risk losing a great deal to patients who bring successful malpractice actions, and that they must be prepared to defend themselves even against cases that lack merit. As a result, hospitals and surgical centers tend to arm themselves with skilled defense attorneys who are trained to identify and exploit any weaknesses of a malpractice victim's case.

What this means is that if you are seeking to hold a hospital liable for the negligence of a surgeon who operated there, you need attorneys with equal skill. Fortunately, you can have an experienced Oregon medical malpractice attorney can review your case at no cost. We will point out your case's strengths and weaknesses, especially in the area of the hospital's potential liability for your surgeon's actions.

We invite you to contact Huegli Fraser PC for an analysis of your claim. Learn more about filing an Oregon medical malpractice case:

Categories: Medical Malpractice

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.

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