Medical Malpractice:

Determining Fault

It is a misconception that medical malpractice is limited to medical doctors; it applies to all healthcare professionals: nurses, anesthesiologists, health care facilities such as hospitals, pharmaceutical companies, and others that provide health care services.


A hospital is a corporation and can be public or private. As such, in the realm of medical malpractice, hospitals can be held directly liable for negligence, and can also be held "vicariously" liable for the negligence of their employees.”Vicarious liability” simply means that a party can be held responsible for medical malpractice negligence that is not its own, but of another.

Hospital Negligence

The staff of a hospital is considerable, including licensed physicians, nurses, physician's assistants, nurse practitioners, and other licensed medical professionals. Obviously, when hiring its medical staff, a hospital is required to make reasonable inquiries into an applicant's education, training and licensing.  Failure to do so is grounds for a medical malpractice lawsuit under the "corporate negligence" doctrine for their negligent supervision or retention of an individual, in the event that the staff member's negligent care causes a patient to be injured or to suffer unnecessarily.  Again, a hospital may be held at fault for its own negligence in the event that it does not investigate the credentials of an attending physician before he or she is granted privileges at the hospital, or, if it permits a physician whom it knew, or reasonably should have known, was incompetent or unqualified, to treat patients at the hospital.

Furthermore, hospitals must ensure that there are enough registered nurses on duty at all times, in order to maintain quality patient care.  Failure to do so may be grounds for a medical malpractice case, if patients are injured or suffer as a result of the nursing shortage.  Yet another area of potential liability for hospitals is when its employees do not appropriately follow the directives of a patient's private attending physician.  On the other hand, in the event that a hospital employee finds the treatment plan of a private physician's to be clearly flawed or professionally inadvisable, but does not make a reasonable inquiry of the physician to confirm the treatment plan, the hospital could also be found liable.

The list of other areas for which a hospital may potentially be held liable for medical malpractice negligence is considerable, including: failure to protect patients from harm, failure to adequately perform clinical tests, failure to keep accurate medical records, and errors in the admission and discharge of patients.  In almost all cases, hospitals are required to treat, on an emergency basis, people who are seriously injured or ill. Failure to do so may result in hospital liability. Obviously, both federal and state statutes prohibit the refusal of treatment on the basis of race, color, religion or national origin, or on their inability to pay for treatment.

Vicarious Liability

Under the doctrine of respondeat superior, which means that an employer may be held liable for the negligent acts of its employees (provided the employee was acting within the scope of his or her duties), a hospital may be held liable for the negligence of its staff. Obviously, this is very important in medical malpractice cases, as it ensures the presence of a financially responsible party to provide compensation for the unjustly injured plaintiff.

However, in certain circumstances, healthcare professionals, such as physicians, are legally considered independent contractors and not the employees of the hospital. Consequently, respondeat superior cannot be applied in these cases; the hospital is not responsible for the negligence or medical malpractice of doctors who are legally viewed as independent contractors. However, if there is any negligence on the part of the hospital (for example, if they should have refused attending privileges to the physician on the grounds that he or she was unqualified or incompetent), then it can be held responsible for this negligence. Finally, in some cases, a hospital may be liable, vicariously or directly, for the actions or omissions on the part of contractors it retains in the operation of its emergency rooms and outpatient facilities.  A skilled medical malpractice attorney can advise you as to the specifics of your situation.

Pharmaceutical Companies

If a pharmaceutical manufacturer fails to warn a physician about the potential side effects and dangers of a drug, then the manufacturer may be held liable for damages.

The primary duty of a pharmaceutical manufacturer is to physicians. As a consequence, in most cases, the manufacturer will not be liable for the injuries of a patient, provided it sufficiently informed the physician of all risks and side-effects associated with a particular drug.  The only duty of the pharmaceutical company to the consumer is that the manufactured medication is reasonably safe when used as intended, which is the result of tests and studies before it is placed on the market.

In the event that a pharmaceutical manufacturer does not provide the physician with an adequate warning of a drug's potential dangers, the case is no longer as issue of medical malpractice, but instead of product liability. The drug is determined to be "unreasonably dangerous," and, as a consequence, the manufacturer may be held liable for the failure to provide proper warnings.

However, in most cases, physician who prescribed the drug is considered a "learned intermediary." That is, because of his or her professional medical knowledge, and the fact that he or she has received adequate information from the manufacturer, as a physician, he or she is in the best position to decide whether or not a specific drug or medical device is suitable for a patient. Consequently, it is primarily the duty of the physician to advise the patient as to the risks and potential side effects of a medication or medical device he or she prescribes.  Failure to properly perform this duty could be grounds for a medical negligence lawsuit.