Vicarious Liability In New York


Vicarious liability is when one person may be liable for the acts of another person.  This principle usually comes up in cases when the employer is responsible for the acts of the employee.  It can be very important to establish vicarious liability because the employer, or the employer’s insurance, has the resources to compensate the injured individual properly.

In order to establish employer liability, it needs to be determined whether the employee was acting within the “scope of employment” when the accident or injury occurred.  In the case of medical malpractice, it needs to be determined whether hospital employee who caused injury to the patient was acting in their capacity as an employee.  Such employees include nurses, aids, technicians, and occasionally doctors.

Many health care providers who work in hospitals are considered independent contractors and are not employees of the hospital.  Hospitals are not liable for the acts of the non-employee members of the medical staff.  However if the hospital exercises control that makes an independent contractor an employee in fact or holds and independent contractor out as a hospital employee, then the hospital can become liable for that independent contractors actions.

To determine whether a hospital is vicariously liable for the actions of an independent contractor, the courts will look at the terms of the employment arrangement between the hospital and the health care provider, how much control the hospital had over the health care provider’s job conditions and performance, and the pay of the provider.  Generally, the more control an employer has over the independent contractor’s performance, the more likely the court will view the independent contractor as an employee.

Hospitals are liable for the negligence committed by their employees, allowing a malpractice victim to be entitled to sue the hospital for malpractice, as well as suing the hospital employee.

Examples of acts that may result in a hospitals vicarious liability include:

  • A physician employee’s misdiagnosis,
  • A physician employee’s negligent actions that affect pregnancy and childbirth,
  • A physician employee’s mistake when prescribing or administering medication,
  • Surgical errors of a physician employee,
  • Nurse’s failure to properly monitor a patient,
  • Failure of a nurse to take the patient’s vital signs,
  • Nurse’s failure to record into the patient’s chart,
  • Administration of the wrong type of medication, or the wrong amount,
  • Failure to check for bed sores,

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