Vicarious Liability

Vicarious liability is defined as one person being liable for the negligent actions of another person even though the first person was not directly responsible for the injury. When a hospital employee's malpractice injures a patient, the hospital itself may be held vicariously liable under the legal doctrine of "respondent superior." Under such doctrine, an employer may be held liable for the negligent acts of its employee, if the employee was acting within the scope of their employment when the negligent act or omission occurred. This is important to plaintiffs in medical malpractice actions, because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.

In some situations, health care providers such as physicians are considered independent contractors rather than a hospital employee, and the doctrine of "respondent superior" will not be applicable. This means if a doctor or other health care professional is an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor's negligence. However, in granting attending privileges to an unlicensed or incompetent physician, the hospital can be held responsible for its own negligence.
Finally, in certain situations, a hospital may be vicariously or directly liable for the acts or omissions of contractors it retains to operate emergency rooms and outpatient facilities.
In some states, there are statutes that protect state-run health facilities. Throughout the country, there are hospitals that are actually teaching facilities and employ physicians who are considered employees of the state. These health care professionals, including residents and interns, are frequently given sovereign immunity, which limits their liability by shortening the time period in which an action can be filed, and placing maximum limits on the amount of damages and attorneys' fees that can be recovered.

Duties of Pharmaceutical Companies / Manufacturers

If a pharmaceutical manufacturer fails to warn health care professionals of a drug’s potential side effects or dangers, the manufacturer may be liable if a drug caused a patient injury. A pharmaceutical manufacturer's primary duty is to physicians. A manufacturer will generally not be liable for a patient's injuries, as long as it sufficiently informed the physician of any and all risks associated with a certain medication.

As far as a patient is concerned, a pharmaceutical company only owes a duty to ensure that the medication it manufactures will be reasonably safe when it is used as directed. To ensure a drug's safety, the manufacturer researches the drug's possible side effects and risks before putting it on the market. If the pharmaceutical manufacturer fails to sufficiently warn a physician of a drug's potential dangers, the drug becomes what is known under product liability law as unreasonably dangerous, and the manufacturer might be held liable for the failure to provide the proper warnings.

The prescribing physician is considered a learned intermediary, which means that because of his/her superior medical knowledge, and assuming he/she has been given adequate information from the manufacturer, he/she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and/or side effects of a particular medication or medical device which he/she prescribes.