Vicarious liability
Information correct as of June 2009
Vicarious liability is an important legal principle. It is the liability you may have for the acts and omissions of an employee or some other individual for whose conduct you are legally responsible.
Your membership of MPS entitles you to seek indemnity in relation to your own acts and omissions. Your subscription is set at a level that reflects your “personal” risk.
If you employ a number of staff, you could be vicariously liable for their acts and omissions. It is important to understand that your membership of MPS may not protect you financially if a negligence claim is made against you for the acts and omissions of these staff. Clearly, it would be inequitable for MPS – in effect your fellow members – to bear such additional costs in return for only one subscription.
It is in your interests to ensure that any employee or independent contractor working for you 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 your staff personally for negligence. Clearly this reinforces the need for them to arrange their own protection.
Although your MPS membership does not extend to an indemnity for your liability to your 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
Liability is shared amongst the partners of the practice - you are “jointly and severally liable”. It is therefore important to ensure that all the other partners have made their own indemnity arrangements. MPS cannot provide them with financial assistance if they are not members of MPS. If your partners do not have professional protection and cannot meet their share of the costs of a negligence claim, it could fall to you to contribute to those costs from your personal funds.
Vicarious liability and other healthcare businesses
If you have formed a company and employ 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. Your personal indemnity arrangements will not protect you 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 your company, particularly if the patient has chosen to bring an action against both the practice and an employee.
MPS Risk Solutions Limited (a wholly owned subsidiary) is an insurance company authorised and regulated by the Financial Services Authority.
This company has been created with the specific intention of addressing the corporate malpractice insurance needs of doctors and other health professionals in business.
It can provide you with information about its corporate insurance products and you can contact MPS Risk Solutions Limited on 0113 241 0395 or alternatively visit their website at www.mpsrs.co.uk.