Medical Malpractice: When Can Patients Sue a Hospital for Negligence?

Hospitals are responsible for their employees' negligence andmedical malpractice.

If you are injured when receiving treatment in a hospital, can you sue the hospital for negligence or medical malpractice? Though hospitals are often on the hook for incompetent care provided by employees like paramedics, nurses, and medical technicians, they often are not responsible for a doctor's medical malpractice.

Here's a primer on when a hospital is, and is not, responsible for medical malpractice committed by its employees and staff doctors.

Hospitals Are Liable for Employee Actions

If someone is an employee of a hospital, the hospital is responsible (liable) if that employee hurts a patient by acting incompetently. In other words, if the employee is negligent (is not reasonably cautious when treating or dealing with a patient), the hospital is on the hook for any resulting injuries to the patient. (Keep in mind that not every mistake or unfortunate event that happens in a hospital rises to the level of negligence. To learn more about what constitutes medical malpractice, read Nolo's article Medical Malpractice Basics. )

Typically, nurses, medical technicians, and paramedics are hospital employees. As long as the employee was doing something job related when he or she injured the patient, the patient can sue the hospital. For example, if a paramedic employed by the hospital injects the wrong solution into the patient on the way to the hospital, particularly if the medical situation is not life threatening, then the hospital is liable for the paramedic's mistake.

However, if a doctor makes a mistake and injures a patient while working in the hospital, the hospital will not be liable for the doctor's mistake unless the doctor is an employee (which is unlikely see below).

Also, if a hospital employee commits malpractice while under a doctor's supervision, the patient can sue the doctor, but the hospital may be off the hook. Whether an employee is under the supervision of the doctor when the misdeed occurs depends on:

• whether the doctor was present, and
• whether the doctor had control to prevent the employee's negligence.

For example, a surgeon may be liable if an attending nurse miscounts the surgical sponges, leading the surgeon to leave a sponge in the patient. (To learn more about this situation, read Nolo's article Nursing Malpractice) .

Are Doctors Hospital Employees?

Whether a doctor is a hospital employee depends on the nature of his or her relationship with the hospital. Though some doctors are hospital employees, most doctors are not. Non-employee doctors are independent contractors, which means that the hospital cannot be held responsible for the doctor's medical malpractice, even if the malpractice happened in the hospital.

A doctor is more likely to be an employee (rather than an independent contractor) if:

• the hospital controls the doctor's working hours and vacation time, or
• the hospital sets the fees the doctor can charge.

Exceptions: When Hospitals Are Liable for Non-Employee Doctors' Actions

Even if a hospital would generally not be liable for an independent contractor doctor's malpractice, a hospital may be held responsible in certain situations.

Hospital Appeared to be the Doctor's Employer

If the hospital does not make it clear to a patient that the doctor is not an employee, the patient can sue the hospital for the doctor's malpractice. Hospitals attempt to avoid this problem by informing patients in the admission forms that the doctor is not a hospital employee.

The situation is different for patients injured in an emergency room. Usually, the hospital does not have an opportunity to inform emergency room patients that a doctor is not an employee. This means that ER patients can often sue the hospital for a doctor's medical malpractice. There are also a few states that say a hospital can be sued for emergency room malpractice regardless of what the patient believed or was told. (To learn more, read Nolo's article Medical Malpractice During Emergencies.)

Hospital Keeps an Incompetent Doctor on Staff

A number of states hold the hospital responsible if it gives staff privileges to an incompetent or dangerous doctor, even if the doctor is an independent contractor. The hospital is also responsible if it should have known that a previously safe doctor had become incompetent or dangerous. For example, if a doctor becomes severely addicted to drugs and the hospital management knew about it, or it was so obvious they should have known about it, a patient injured by that doctor can sue the hospital.

Getting Help

It's often essential to get advice or representation from a lawyer because medical malpractice law is highly regulated by a complex body of rules, which vary considerably from state to state.

For help on choosing a good medical malpractice attorney, read Nolo's article Finding a Personal Injury Lawyer . Or, you can go straight to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click on the "Types of Cases" and "Work History" tabs to learn about a particular lawyer's experience, if any, with medical malpractice claims).