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Suing a Hospital vs. Suing the Doctor for Medical Malpractice

Apr30
Lawyer talking to the doctor for medical error lawsuit.

Your medical care can go wrong in a hospital. Instead of getting better, you may instead suffer harm due to a doctor’s negligence. If this occurs, you may be eligible to sue the hospital for medical malpractice. This may be true even if the hospital does not consider the doctor to be an employee.

In Maryland, Washington, D.C., and many other jurisdictions, you can sue an employer if one of its employees commits negligence which harms you – as long as the employee is working within the “scope and conduct” of employment at the time of the negligent act (or failure to act). This is known as vicarious liability or simply as employer liability.

A hospital can be held liable under this theory in a several situations in which a doctor hurts a patient, including where the doctor is:

  • An actual “employee” of the hospital where he or she works (regardless of whether the hospital labels the doctor to be an “employee”)
  • An “independent contractor” and not an employee, but the hospital fails to disclose it or make it clear that the doctor is not an employee (a legal theory known as “apparent agency”).

A hospital may also be held liable if it negligently brought aboard a doctor as an independent contractor without doing an adequate background check. Some doctors may have a disciplinary record or a history of medical malpractice payouts. A hospital may be liable for exposing patients to a potentially dangerous doctor.

The Washington, D.C. medical malpractice attorneys of The Law Offices of Dr. Michael M. Wilson, M.D., J.D., can help you determine whether you can bring your medical malpractice claim against the hospital where you were treated or whether you must assert your claim specifically against the doctor who negligently treated you. Here, we explain this topic in more detail. To discuss the specific facts of your case, call or reach us online today.

Doctors as Employee vs. Doctors as Independent Contractors

Whether a doctor is an “employee” or “independent contractor” can be a critical issue in medical malpractice lawsuits in the District of Columbia and elsewhere. Remember: If a doctor is an actual or apparent employee, the hospital could potentially be liable for the doctor’s malpractice. However, if the doctor is an independent contractor, the hospital could not be held liable for the doctor’s negligence. However, the hospital could still be liable for its own negligence.

One way to determine whether a doctor is an employee or independent contractor is to look at these factors:

  • Do the hospital and doctor have an oral or written employment agreement or an independent contractor agreement?
  • Does the hospital have the right to set the doctor’s working hours?
  • Does the hospital pay the doctor a salary, or does the hospital pay a contract-based per-service fee?
  • Does the hospital set the fees which the doctor charges, or does the physician charge his or her own fees?
  • Does the hospital control the physician’s work like telling the doctor which patients to treat?
  • Does the hospital have the ability to discipline or fire the doctor?

As you can see, the more control that a hospital has over a physician’s work, the more likely that the hospital and doctor have an employer-employee relationship.

Non-Employee Liability

Even in cases where a doctor is likely an independent contractor rather than an employee of a hospital, circumstances may exist that allow you to hold the hospital responsible for the harm that you have suffered:

  • Appearance of Employment

As we stated above, a hospital may be liable for a doctor’s negligence – even if the doctor is an independent contractor – if the hospital fails to inform you that your doctor is not an employee, and it reasonably appears to you that the doctor is an employee. You may be able to file a medical malpractice claim against the hospital regardless of the actual relationship between the hospital and doctor.

Many hospitals will note on the admission form which you sign that your treating physician is not an employee of the hospital. In other cases, a hospital may require independent physician practices which are associated with the hospital to use the hospital’s name and logo in connection with the independent practice, which may also permit you to bring a claim directly against the hospital.

  • Emergency Room Treatment

If you are brought to the emergency room, you may be unable to sign an admission form before receiving treatment. So, you may be able to bring a medical malpractice claim against the hospital even if a non-employee physician treats you.

  • Negligent Retention

A hospital may be responsible for the negligent care by an independent contractor physician if it granted that doctor privileges while knowing that the doctor had a bad record and presented a risk to patients. In other words, the hospital negligently entrusted patients to a risky doctor’s care and should be held responsible when the doctor harms a patient.

How Do You Know Who Should Be Liable for Medical Malpractice?

Determining whether a hospital or just the doctors should be liable for the doctor’s medical malpractice requires looking at a host of factors. Some of the circumstances that a medical malpractice attorney will review to determine whether you should bring your medical malpractice claim against a hospital or doctor, or both, include:

  • The agreement between the hospital and doctor – Do they have an employment agreement or an independent contractor agreement?
  • The ability of the hospital to control the physician work – Does the hospital set hours, approve vacation time, assign patients to the physician or subject the physician to the hospital’s human resources procedures?
  • The information you are given at admission – Does the hospital make it clear to patients that the doctor is not an employee, or does the hospital try to bury that critical fact somewhere in the fine print of an admission form?
  • Hospital hiring and retention policy – Did the hospital fail to do due diligence and check on a doctor’s background before allowing him or her to treat patients at the hospital as an independent contractor? Did the hospital fail to follow its own policy with regard to hiring and retention of independent contractor physicians?

No one factor may determine whether a doctor is independent of the hospital where you were treated. The more factors that point to the existence of an employment relationship between the hospital and doctor, the more likely you will be entitled to pursue your medical malpractice claim against the hospital.

Get Help from an Experienced Washington, D.C., Medical Malpractice Lawyer

If you or a loved one were injured due to the negligence of a doctor while being treated at a hospital, you will face challenges when it comes to holding the hospital liable for the doctor’s negligence. This is especially true if the hospital denies that the doctor is an employee. You will need help from an experienced lawyer who can sort through all of the issues and develop a strategy that is aimed at securing just compensation for you.

Contact the Washington, D.C. medical malpractice lawyers of The Law Offices of Dr. Michael M. Wilson, M.D., J.D. today. We will review your circumstances and analyze it from the perspective of attorneys who are physicians themselves. We can provide an honest assessment of your case and discuss how we can help as you and your family move forward.

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