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. Click here for more information
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.
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 information about its corporate insurance products and can be contacted on 0113 241 0395 or, alternatively, via their website.
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.
Treating elite sportsmen and women
MPS has produced the following guidance for specialists/consultants who receive referrals to treat injured footballers or other high earning sports men or women.
MPS advises that specialists/consultants treating sports men and women for injuries incurred during the course of their employment should ensure that they conduct themselves in such a way that any duty of care is limited to the patient and not the employer. Specific guidelines are given below.
This guidance has been prompted by a case involving a Premiership football club and a consultant orthopaedic surgeon. The surgeon was referred a player by the club’s doctor for an injury suffered whilst training. The player did not resume a level of fitness such that he could return to professional football and a claim was brought by the club against the surgeon, an MPS member, alleging negligence and breach of contract.
The claim was substantial and included a claim for the loss of the player’s value on the transfer market or the cost of acquiring a replacement player. The case hinged on whether a relationship existed between the surgeon and the club which gave rise to a duty of care, either contractual or implied.
Prior to treating this player, the surgeon had treated a number of other players from the club. However he denied that he had a contractual relationship with the club or that he owed them a duty of care. The surgeon argued that he had a doctor–patient relationship with the players and that a relationship with the club could not be implied.
The issue was decided by the High court in December 2005 in the surgeon’s favour, a decision that was upheld on appeal.
Guidelines
Specialist/consultants should:
- Not enter into a written or oral contract with an employer to treat employees for reward
- Only accept referrals from other healthcare professionals, not from clubs directly
- Address any professional fee notes to the patient and not the employer (if fees are to be settled by the employer or their medical insurers the patient should be asked to forward them on. Alternatively, written confirmation may be obtained from the patient that all fee notes should be sent to the employer or their medical insurers)
- Review any existing relationship with an employer of a patient very carefully.
If in doubt seek advice from MPS.