The legal relationship between an employer and an employee is called agency. The employer is called the principal when engaging someone to act for him. The person who does the work for the employer is called the agent. The theory behind respondeat superior is that the principal controls the agents behavior and must then assume some responsibility for the agents actions (Phelps & Lehman 2005).
Most medical malpractice suits are filed as result of negligence (ie, a type of tort or civil wrong) Negligence is defined by what a reasonably prudent person would or would not do in the same or similar circumstance. Negligence can result from the individual medical provider or from some type of agency relationship that exists between two or more health care providers. In general, when we discuss the relationship between agency and malpractice, we refer to the concept of vicarious liability and the Doctrine of Respondeat Superior ( Columbia 2000).
In the context of medical malpractice a negligence action is often precipitated by a bad outcome. Numerous cases have involved the concept of vicarious liability and the Doctrine of Respondeat Superior as a successful cause of a medically negligent action. Recent changes in the health care system may contribute to additional causes of action being recognized.
As managed care has moved to the forefront of health care, many medical providers have left independent practice and become employees of large health care organizations (HMOs) or hospitals. Some medical providers have formed their own business with health care extenders who perform many of the services previously provided by the medical provider. As a result, HMOs and hospitals have become employers of medical providers, and medical providers have become employers of their health care extenders (Regan 2002).
In the past, the relationship with the patient and extensive documentation in the medical record were the most important elements in preventing malpractice litigation. These efforts, while important, may have less of an effect in the evolving health care climate. With these changes, principles of agency and vicarious liability may become increasingly important in evaluating malpractice liability. Both the negligence of a health care employee employed by an individual medical provider and the negligence of an individual medical provider employed by a health care company have given rise to successful malpractice suits. The Doctrine of Respondeat Superior is one to weigh carefully by both plaintiffs and defendants in their current practice of law and medicine.
Malpractice. The Columbia Electronic Encyclopedia, 2000. http://kids.infoplease.lycos.com/ipd/A0401963.html
Raines v Mercer, 55 5W2d 263, 264 (Tenn 1932)
Regan, J. , & Regan, W. (2002, May). Medical malpractice and respondeat superior. (Review Articles). Southern Medical Journal, 95(5), 545-549. Retrieved January 23, 2013, from Nursing and Allied Health Collection via Gale: http://find.galegroup.com.proxy.davenport.edu/nrcx/start.do?prodId=NRC
Respondeat Superior. (2005). In S. Phelps & J. Lehman (Eds.), Wests Encyclopedia of American Law (2nd ed., Vol. 8, pp. 334-336). Detroit: Gale. Retrieved from http://go.galegroup.com.proxy.davenport.edu/ps/i.do?id=GALE%7CCX3437703788&v=2.1&u=lom_davenportc&it=r&p=GVRL&sw=w