Question

Use your knowledge of what you have learned about the employer/employee or employer/independent contractor dynamic to explain why the traditional rules of vicarious liability/respondeat (common law) superior do not apply in a healthcare delivery setting such as a hospital.

Answer 1

Difference between employer/employee and employer independent contractor dynamic as explained below:

The employee/employer relationship exists depends on the condition if the employer has the "right to control" over the employee. The right of control means the manner or way in which an employee works or performs. for eg- in the case of healthcare claims, the focus is on whether the employer has the right to control the way employee/worker diagnosis or treats his patient.

If there is no "right to control" exist between the employer and the employee, then we call it as employer and independent contractor dynamic. Independent contractors are also known as freelancers and they have their independent business. They are hired by the companies to perform specific tasks and are paid accordingly. They can be hired for a number of weeks, months or years. It totally depends upon the requirement of the company. They have complete control over the method and ways they work, the employer does not have the right to interfere in their manner of working.

Traditional rules of vicarious liability/respondeat (common law) superior do not apply in a healthcare delivery setting such as a hospital because of the following reasons:

• Respondeat superior defines and adheres to the rule that an employer is responsible for the negligent acts of the employee.
• This is a strictly dependent or vicarious theory of liability, which means a finding of liability isn't supported by any improper action by the leader.
• The very fact that the leader might have acted fairly in hiring, training, direction and retention of the worker is moot and doesn't offer a basis on that the leader will avoid liability for the acts of staff.
• The underlying premise of respondeat superior is that the price of torts committed within the conduct of commercialism ought to be borne by that enterprise as a value of doing business.
• A leader can even be directly accountable for the negligence of its staff. This implies that some negligent acts or omission of the leader was a reason for the negligence of the worker, thereby inflicting injury to the claimant.
• This direct liability of the leader usually arises from the claim that it negligently employed, trained, supervised, or maintained the worker in question.
• These claims can even involve allegations that correct policies and procedures weren't enforced or implemented properly and those failures caused the injury in question.
• The locum tenens physician acts as an independent contractor. He is the type of physician who is hired as a substitute physician for some temporary period of time.
• When utilizing a locum tenens, however, one has to remember of liability exposure underneath associate degree ostensible agency.
• It might most likely not be tough for patients to believably argue that they thought the backup was associate degree worker of the observe, significantly if they were a longtime patient of the absent doctor.
• Thus, it's vital that a backup doctor is specifically known as a nonemployee freelance contractor once seeing patients. Otherwise, the company that hired locum tenens physicians may very well be liable for improper conduct or acts.

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