Negligence in a hospital setting encompasses the whole realm of medical malpractice, from physician malpractice to nursing malpractice to malpractice by a physical or occupational therapist. It also applies to the negligence of the hospital administration itself.
Hospital liability is divided into two main types. The first type is the hospital’s liability for the negligence of its employees. According to the legal rule of vicarious liability, any employer (including hospitals) is liable for its employees’ negligence. So, the hospital is legally liable for any malpractice committed by a physician, nurse, or other health care providers who is employed by the hospital.
The second type of hospital liability is the hospital’s liability for its own mistakes and negligence, such as negligence in hiring and supervising its employees and maintaining and repairing its equipment.
Hospital Liability for Negligence of Employees
While many health care providers who work in hospitals are independent contractors (i.e., not direct employees of the hospital), many others work directly for the hospital. Because the hospital is liable for the negligence of their employees, a malpractice victim would be entitled to sue the hospital for malpractice, in addition to suing the negligent hospital employee him/herself.
Now, let's look at different types of medical malpractice.
Examples of Physician Malpractice
Most types of physician negligence falls into the following main categories:
- negligence affecting pregnancy and childbirth
- mistakes in prescribing or administering medication
- surgical errors
If a physician who worked for the hospital was negligent in any of these tasks (or in any other task), the hospital would be liable along with the physician. It gets tricky with physicians, however. Many are independent contractors, not employees, so some investigation may be necessary (more on this below).
Main Types Of Nursing Malpractice
Nurses owe patients an independent professional duty. Obviously, a nurse is not directly in charge of a patient’s medical care, but there are many tasks that nurses perform that are related to the patient’s care.
Some of the most important of a nurse’s tasks include monitoring and feeding patients and administering medications, among other things. Nurses can make mistakes amounting to negligence in any or all of those tasks. For example, a nurse can:
- fail to monitor a patient properly
- fail to take a patient’s vital signs at the proper times
- forget to take an important vital sign
- fail to enter the patient’s nursing record into the patient’s chart
- administer the wrong type of medication
- administer the wrong amount of medication
- administer the medication at the wrong time
- fail to check a bedridden patient for bed sores
- fail to respond to a patient’s call quickly enough
- fail to report suspicious symptoms and complaints to the physician in charge.
Any one of these failures can constitute negligence. If the nurse is an employee of the hospital, the nurse’s negligence constitutes the hospital’s negligence as well.
Therapists -- whether they be physical, occupational, or mental health therapists -- can also be negligent. For example, a physical therapist might fail to follow a physician’s instructions properly or might manipulate a patient’s injured limb too strongly. Physical therapists have been known to actually re-break a bone or re-tear a muscle or tendon that the therapist was supposed to be rehabilitating.
Hospital Liability for Negligence of Independent Contractors
What if the negligent doctor, nurse, or therapist was an independent contractor and not an employee of the hospital? Is the hospital still vicariously liable for that health care provider’s negligence?
This is a complicated issue that depends on your state’s law, but in general the courts will look at factors like the precise terms of the employment arrangement between the hospital and the health care provider, exactly how much control the hospital had over the health care provider’s job conditions and performance, and how the provider was paid.
As a general rule, the more control that an employer has over the performance of a supposedly independent contractor, the more likely it is that a court might find that the independent contractor was actually an employee.
The Hospital’s Own Negligence
Direct hospital negligence can include the hospital’s negligence in hiring and supervising its employees and maintaining and repairing its equipment. This is direct hospital negligence because these types of issues are overseen by hospital management.
Hospital negligence includes the following types of issues:
- negligent hiring of employees (such as failing to verify that its health care providers are properly licensed)
- failure to ensure that its employee health care providers stay up to date on their licensing requirements, such as continuing medical education
- failure to fire incompetent, unlicensed, or unsafe employees
- failure to establish proper patient safety protocols for issues like hand washing, sanitation, preventing patient falls, patient safety, keeping up with new medical developments, among other things
- understaffing of medical and/or nursing staff
- mislabeling medication
- violating patient confidentiality by losing or mishandling patient records