THE MYTH OF VICARIOUS LIABILITY

Impact on Barriers to Nurse-Midwifery Practice

Authors

  • Susan M. Jenkins jd

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    • Susan M. Jenkins, JD, is currently the general counsel for professional and practice issues of the American College of Nurse-Midwives. Ms. Jenkins is a graduate of Columbia University School of Law. She served as a staff attorney in the Bureau of Competition of the Federal Trade Commission from 1979–1981, and then entered private practice, specializing in antitrust and health care law. She has represented nurse-midwives and other nurses in specialized practice throughout her career in a variety of matters relating to professional rights and barriers to practice. In the mid-1980s, as counsel to a number of state associations of nurse anesthetists, she persuaded several physician-owned malpractice insurance companies to withdraw or rescind surcharges that had been imposed upon surgeons who work with certified registered nurse anesthetists. Two years ago, she represented the group practice, described in the article, that successfully challenged the imposition of surcharges upon OB/GYNs who work with nurse-midwives.


2American College of Nurse-Midwives, 818 Connecticut Avenue, NW, Washington, DC 20006.

ABSTRACT

Lack of understanding of the legal concept of vicarious liability may underlie certain barriers to nurse-midwifery practice. Malpractice insurance surcharges, denial or restrictive limitation of clinical privileges, and physician “supervision” requirements may all be premised, at least in part, upon an assumption that physicians who work with, and hospitals that grant clinical privileges to, nurse-midwives will automatically be liable for any negligent actions or omissions of CNMs. This article examines the basis for such assumptions and, based upon research into the current case law on this subject, concludes that popular assumptions regarding physician/CNM or hospital/CNM vicarious liability are unfounded. According to the author's research, no reported cases exist to support that assumption. Vicarious liability arises from the relationship between two parties and is imposed solely on the basis of the relationship. An employer is almost always vicariously liable for the negligent actions or omissions of his employee. If a nurse-midwife is the bona fide employee of a hospital or physician, the latter will most likely be subject to vicarious liability. Absent of any employment relationship, however, such liability will not necessarily be imposed. Rather, the result will vary depending upon the facts of each case, and each professional's relative degree of fault would be determined upon the basis of his or her own actions. Hospital liability for nonemployee nurse-midwives who hold clinical privileges should be no different from hospital liability for physician members of its medical staff—that is, in most cases the hospital will not be vicariously liable for the negligence of its nonemployee staff, but will be directly liable for its own negligence if it failed to credential or monitor the performance of its staff members properly. A malpractice surcharge case, and the insurance principles and data that may be derived from that case, are also discussed.

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