Vicarious liability
Our subscriptions are calculated on the basis of the risk represented by a single member
If an employee commits a negligent act or omission while acting in the course of their employment, the employer can be held to be vicariously liable for any resulting claim. This can apply even in situations where the negligent act was expressly forbidden by the employer, or where the omission represented a failure to follow reasonable instructions given to the employee by the employer.
Our subscriptions are calculated on the basis of the risk represented by a single member. Members should not expect to be indemnified for the acts and omissions of other staff in general, on the strength of a single annual subscription.
It is in members’ interests to ensure that any employee or independent contractor working for them with a high level of clinical autonomy subscribes to an indemnity or insurance scheme in their own right. This includes, by way of example (but the list is not exhaustive), locums, deputies, radiographers, nurses, audiologists, physiotherapists, counsellors, embryologists, pharmacists and laboratory scientists. Moreover, a patient may choose to sue a member of staff personally for negligence. Clearly, this reinforces the need for them to arrange their own protection.
Although MPS membership does not extend to an indemnity for a member’s liability to their staff in general, we may use our discretion to make an exception in the case of claims of negligence against certain employees, such as administrative staff and phlebotomists.
It is unlikely that MPS will extend the benefits of membership to assist with claims resulting from vicarious liability for clinically trained staff with high levels of autonomy.
Vicarious liability and GP partnerships
If a member forms a company and employs staff, the company is vicariously liable for the acts and omissions of these employees
Partners are jointly and severally liable in legal actions brought against the partnership, and it is essential that each partner and every assistant is a member of a recognised protection or defence organisation, and/or appropriately indemnified/insured.
Vicarious liability and other healthcare businesses
If a member forms a company and employs a number of staff, the company is vicariously liable for the acts and omissions of these employees and, in some circumstances, any self-employed independent contractors. A member’s personal indemnity arrangements will not protect them financially if a negligence claim is made against the company arising from the actions of these staff.
Whilst prudent practitioners will ensure that professional members of staff, eg, nurses, radiographers and embryologists have their own indemnity arrangements in place, these will be designed to fit the employees’ own needs and protect their interests first. They may not protect a member’s company, particularly if the patient has chosen to bring an action against both the practice and an employee.
Claims under US and Canadian law
MPS does not provide indemnity to health professionals working in the USA and Canada, other than for “good Samaritan acts”.
Typically, legal proceedings are started in the country where the alleged negligence occurred, which is usually in the country in which the patient was treated. It is highly unlikely that a patient would be allowed to initiate proceedings in Canada or the USA for harm incurred in another country.
In more than 100 years, MPS has never dealt with a case where the US or Canadian courts have successfully imposed judgment on a member practising in another country. Although courts in the USA or Canada are reluctant to claim jurisdiction over acts committed in other countries, it is a theoretical possibility.
If a court in one of those territories did try to impose its judgment on an MPS member in a country outside its jurisdiction, MPS would ordinarily support that member in strongly opposing such an attempt.
In the unlikely event that a US or Canadian court succeeded in imposing its judgment in another country, MPS is likely to limit any indemnity to the level of damages that would have been awarded by UK courts.
Accordingly, members are advised that they may provide professional services to all patients in the country in which they are registered to practise, safe in the knowledge that they can apply for assistance should legal proceedings ensue in the country in which they provided care.