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Being clear about vicarious liability

You are liable for the acts or omissions of your employees in the event of a claim; MPS medicolegal adviser Dr Janet Page explains your responsibilities when you are vicariously liable

The exercise of clinical judgment is a fundamental part of a doctor’s everyday practice. From time to time that judgment will be questioned, either by patients or their relatives or, occasionally, fellow professionals, and the doctor may be called upon to justify his actions either before the Medical Council or in response to a clinical negligence claim.

What, then, is the doctor’s position when it is the acts or omissions of his staff that are under scrutiny?

Vicarious liability

As an employer, you are vicariously liable in the event of a claim arising out of the acts or omissions of your employees. These include not only administrative staff but also clinical staff; for example, nurses or dispensers. Clinical staff are, however, also independently accountable for their own professional judgment and actions. For this reason it is recommended that they hold their own professional indemnity and do not rely on the vicarious liability of their employers. Investigation of nurses by their regulatory body, for example, will not be covered by employers’ vicarious liability.

Clinical staff are also independently accountable for their own professional judgment and actions

The doctor’s responsibilities

When taking on a new member of staff, the doctor is responsible for checking the qualifications and credentials of the prospective employee and his or her suitability for the post. In Hong Kong, doctors who employ or otherwise contract with other healthcare professionals – for example, laboratory technicians, optometrists, physiotherapists or radiographers – are responsible for ensuring the employee in question is appropriately registered. It is an offence for a doctor to employ another healthcare professional who is not so registered.1

New staff should undergo a period of induction to familiarise themselves with the working environment, workplace policies and procedures and, where appropriate, clinical protocols in place that they will be expected to comply with. This will reduce the risk of untoward incidents, many of which are due to unfamiliarity with appropriate procedures.

Delegation

A doctor may delegate a clinical task to a member of staff who has the appropriate skills and qualifications to carry out that task. The doctor is accountable for the appropriateness of the decision to delegate, but the staff member remains professionally accountable for his or her actions when carrying out the delegated task.

Case scenario

During a busy clinic, Dr A asks his clinic nurse to administer routine DPT first booster vaccine to an 18-month-old child. The nurse inadvertently administers MMR, which had been drawn up for another patient. The mother is unhappy as she did not want her child to have the MMR vaccine and sues the clinic. Dr A’s decision to delegate this task to his nurse is acceptable as she had the necessary qualifications and experience to do this. Hence any potential claim against Dr A for inappropriate delegation would be defensible.

On the other hand, Nurse B’s actions in administering the wrong vaccine on this occasion are indefensible and below the standard one would expect from a competent nurse. Nurse B would therefore be liable in the event of a claim in negligence against her. As her employer, Dr A could also be held vicariously liable for Nurse B’s error. In this event, it is likely that Dr A’s medical defence organisation would seek an indemnity from Nurse B’s insurer as Dr A’s own indemnity would not cover the acts or omissions of a member of his clinical staff.

Nurse B’s actions in administering the wrong vaccine on this occasion are indefensible

The Singapore Medical Council (SMC) places a professional obligation on the delegating doctor to exercise effective supervision over any member of staff to whom a task is delegated and who is not a registered medical practitioner. The delegated task must be undertaken as part of a legitimate training programme.2The Medical Council of Hong Kong (MCHK) makes similar provisions.3

Doctors in Singapore providing cosmetic and aesthetic services should be aware that the Guidelines on Aesthetic Practices for Doctors 2008 set out requirements for the minimum level of competence “to carry out the procedure and manage the anticipated serious complications” for List A and List B procedures. In consequence, as a minimum, only registered medical practitioners holding an appropriate Certificate of Competence are entitled to carry out these procedures which may not, therefore, be delegated to non-medically qualified staff members.4

Indemnity

It is the doctor’s responsibility to ensure that all staff members employed by him are appropriately indemnified. Although as an employer you may be held vicariously liable for the acts or omissions of your employees, it does not follow that this will be covered by your own professional indemnity. As a general rule, MPS subscriptions are set to reflect the liability of the individual member and, with the exception of administrative staff, do not extend to cover employees. It is important, therefore, that separate arrangements are made to indemnify clinical staff.

If in doubt, members are encouraged to contact the MPS membership department for further advice. If you contract with other professionals who are not your employees to provide services, it is recommended that you make it a contractual condition that the healthcare professional holds appropriate indemnity and that you check this carefully to ensure it meets your needs.

Case scenario

Mr C is on warfarin for atrial fibrillation. He attends clinic for a routine INR blood test, which is carried out by the nurse. Unfortunately, when the result is received the next day, although marked as abnormal, it is filed away by a new receptionist who fails to bring it to the attention of Dr D or his nurse.

Mr C is subsequently admitted to hospital with a cerebral haemorrhage following a minor fall, which is attributed to the raised INR. Mr C’s family sue Dr D, who is vicariously liable for the actions of his administrative staff. The claim is settled by Dr D’s medical defence organisation.

Public liability insurance

In addition to professional indemnity, it is important to remember that you will also require public liability insurance for your clinic, to protect you against claims for injury other than a result of clinical negligence sustained on your premises – for example, if a patient or visitor slips on a wet floor. This can be arranged through any commercial insurer.

Learning points

  • Doctors are vicariously liable for the actions or omissions of their employees
  • A doctor’s professional indemnity may not cover vicarious liability for clinical staff
  • Doctors may delegate tasks to others, provided they are satisfied the delegee has the appropriate skills to carry out the task
  • When delegating to non-medical staff, the doctor is responsible for effective supervision of the delegee as part of a recognised training programme.

References

  1. Medical Council of Hong Kong, Code of Professional Conduct 2009, para 21.2 (Schedule of the Supplementary Medical Professions Ordinance (Cap 359))
  2. SMC, Ethical Code and Ethical Guidelines 2002 para 4.1.1.4
  3. MCHK, Code of Professional Conduct 2009 para 21.1
  4. Guidelines on Aesthetic Practices for Doctors (issued jointly by SMC, Academy of Medicine, Singapore and College of Family Physicians, Singapore) (October 2008)
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