Who can be considered an employee where vicarious liability is concerned?
Where does the responsibility of the employer end with respect to acts of negligence and omission on the part of the employee? As with all things related to risk, there are no absolutes. Most of the work that has been done on this considers the role of control as the defining factor for deciding liability. In a typical employer-employee relationship, the locus of control lies with the employer and the employee acts within the parameters that have been set by the employer.
In the healthcare setting, typical employee examples would include in-house practice staff such as non-clinical administrative staff, dispensers, practice nurses and phlebotomists. It is assumed that as they have been recruited, trained and retained by the employer, the employer may be deemed liable should there be a claim against them.
For example, there have been documented cases where claims have arisen because of a failure by non-clinical staff to communicate patient complaints to their employer, communicate patient update information from hospital personnel to their employer, and because of the loss and/or misfiling of patient documents. In these cases, the employer has been found to be liable.