Hospitals Are Usually Vicarious Liable For Attending Physicians, But NOT Physicians With Privileges. When In Doubt, Bring The Hospital In The Lawsuit And Let Them Prove It!!!!


Like most states, New York common law (judge-made law) applies a doctrine known as respondeat superior. This is a master-servant theory of liability, wherein the employer will be liable for the employee’s negligence occurring within the scope of employment and while furthering the interests of the employer. Essentially, the employer will be vicariously liable for the negligent acts of an employee who is working for the employer.

In a medical malpractice setting, this means that an employer such as a hospital, physician’s group, or other healthcare practice will be liable for the negligence of an employee. For example, if a surgeon in a physician’s surgical practice negligently performs a hip replacement, the surgeon AND the surgical practice will be liable to the victim. Other individuals that would be liable are the anesthesiologist, nurses, surgical staff, and related personnel.

Where liability gets tricky is whether a physician committing malpractice is an employee of the hospital. It may seem obvious that a surgeon has you go to the hospital for the surgery, so the surgeon must be an employee and the hospital is also liable—right? Nope—this is not necessarily accurate!

This is because the surgeon may have privileges at the hospital, meaning he or she has permission to practice medicine at the hospital and schedule procedures or surgeries there. The physician can use the facilities and the staff there to treat the patient, and the hospital also gets paid for the procedures. However, the surgeon is not an employee at the hospital—just has permission to practice there. The hospital can only be liable if the hospital negligently granted the surgeon privileges or if a hospital staff member—such as a nurse or surgical assistant—actively committed malpractice. Otherwise, the hospital may not automatically be liable for a surgeon’s mistakes who only has privileges.

Contrary to this, if a surgeon is an attending doctor, he or she is usually an employee of the hospital and therefore the hospital will be vicariously liable for the surgeon’s negligence just like any other employer-employee relationship. Again, other hospital staff such as nurses or surgical assistants may also allow a finding of negligence against a hospital.

As you may be able to tell, it can be confusing and sometimes very fact dependent to determine whether or not the physician committing medical malpractice is an employee of the hospital. It is best practice to always commence and action against the hospital and any other actors who may be liable for a victim’s injuries and let the evidence—or the court—tell you otherwise.

But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at