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Hospital Liability For Doctor's Negligence

Is a Hospital Liable for a Doctor’s Medical Malpractice?

If you have ever been to a hospital for a procedure—or an emergency room visit?  If the answer is yes, then you know the bills come in quickly and usually from more than one medical provider.  For example, you go to your local emergency room for stomach pain.  You are admitted for appendicitis and subsequently have surgery.  A day later you are discharged home to recover.  Then six different bills arrive, one from the hospital, the emergency room doctor, the surgeon, the anesthesiologist, the  pathologist, and the radiologist.

Why are you getting bills from different providers when you went to only one hospital?  Because not everyone who treated you is an employee of the hospital.  Among other kinds of medical providers, the services of emergency room doctors, surgeons, anesthesiologists, and radiologists may be provided by independent contractors.  Does that mean the hospital is not responsible for the negligent act of an independent contractor?

When is the Hospital is Liable?

This is not a simple question to answer because there is no definitive answer.  Generally, employers are vicariously liable (someone is held responsible for the actions or omissions of another person) for the negligence of their employees, but not for the negligence of independent contractors (with exceptions).

If the medical mistake was done by a surgeon who was an independent contractor at the hospital, then you can sue the doctor directly.  However, if the hospital knew, or should have known, of the doctor’s incompetence, you may have negligence claims against the hospital for negligent hiring, negligent supervision, negligent retention, and/or firing practices, improper privileges in additional to the medical negligence claim against the doctor.  Further, the nurses are usually employed by the hospital.  If so, you may have a claim against the hospital for the actions (or inaction) of their nurses.  A hospital is responsible for its own negligence but may or may not be responsible for the negligence of an independent contractor.  There are numerous factors which are considered when determining a hospital’s liability when the negligent act was done by an independent contractor.

Generally, because laws vary among the states, the control factor is a vital issue.  The more control an employer has over the independent contractor, the more likely it is that a court might find that the independent contractor was an employee.

 Right of Control

 Respondeat superior (a Latin phrase meaning let the master answer) is a legal doctrine which describes the responsibility of an employer for the actions of employees performed within the scope of their employment.  This doctrine is also known as the master-servant rule, which is recognized in common law, as well as civil law jurisdictions.  The concept is founded on the principle that a business should bear the costs of the negligent acts or omissions committed during the course of conducting business.

If a doctor, who was an actual employee of a hospital, administers a contraindicated (should not be used) medication to a patient, and the patient suffers harm as a result, the hospital and the doctor would be liable for the medical mistake.  Is the hospital still responsible for the doctor’s actions if he/she was independently contracted by the hospital?  Did the hospital have a "right of control" over the doctor?

Determining Factors

There are numerous “tests’’ to determine if a hospital is liable for an independent contractor’s medical negligence.  It gets complicated because the courts in the various states have addressed the legal doctrine of Respondeat Superior in different ways.  Did the hospital lead the patient to believe the hospital was responsible for the physician’s practice?  Did the hospital advertise the physician’s services?  Did the doctor have his practice on the hospital’s campus or other property owned by the hospital?  Did the hospital provide training or continuing education to the doctor?

The degree of control generally falls into three categories:

Behavioral: Does the hospital have the right to control the manner and means of achieving the result desired?

Financial: Are the business aspects of the doctor’s job controlled by the hospital?  Does the hospital provide the instruments, supplies, etc., that the doctor utilizes?  Is the doctor paid for his/her time, but does not risk a loss in wages if the treatment to the patient is not profitable?

An independent contractor may profit from the job, take the risk of loss, make an investment in tools, equipment, supplies, and facilities appropriate for his/her business.

Type of Relationship: Are there written contracts between the doctor and the hospital? Did the hospital offer employee type benefits, such as insurance, vacation/sick pay, retirement, etc.?

An independent contractor generally works on one project and then moves on.  An employee provides services that are necessary to the employer’s business and included into its products and services.  An employee may receive training.  An independent contractor has the skills necessary to perform the job without training.

The IRS has their own tests for determining the relationship between an independent contractor and an employee.  The 20 Factor Test looks at 1) No. Of Instructions; 2) No Training; 3) Services Don't Have To Be Rendered Personally; 4) Work Not Essential To The Hiring Firm; 5) Set Own Work Hours; 6) Not A Continuing Relationship; 7) Control Their Own Assistants; 8) Time To Pursue Other Work; 9) Decide On Job Location; 10) Order Of Work Set; 11) No Interim Reports; 12) Paid By Job; 13) Work For Multiple Firms; 14) Pay Business Expenses; 15) Have Own Tools; 16) Significant Investment In Their Business; 17) Offer Services To General Public; 18) Can Make Entrepreneurial Profit Or Loss; 19) Can’t Be Fired At Will; and 20) No Compensation For Non-Completion. (

The U. S. Supreme Court has indicated that there is not one rule or test for governing whether an individual is an independent contractor or an employee for purposes of the Fair Labor Standards Act.  The Court has held that it is the total activity or situation which controls.  Among the factors which the Court has considered significant are:

  • The extent to which the services rendered are an integral part of the principal's business.
  • The permanency of the relationship.
  • The amount of the alleged contractor's investment in facilities and equipment.
  • The nature and degree of control by the principal.
  • The alleged contractor's opportunities for profit and loss.
  • The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
  • The degree of independent business organization and operation.


Control is the overarching theme when making the distinction between an independent contractor and an employee.  As you can see, it is exceedingly complicated, so never assume the hospital is not liable for the doctor’s (or other medical provider’s) medical negligence even if you think the doctor may be an independent contractor.

If you believe you are the victim of a medical mistake, call our medical malpractice lawyers today at 704-714-1450.  We have the expertise and experience in matters of medical negligence and will thoroughly investigate your claim(s) to determine who the responsible parties are and fight for your right to just compensation.


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