2.9 Vicarious Liability and Agency

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

2.9 VICARIOUS LIABILITY AND AGENCY

2.901 Overview of the Master-Servant Relationship. To ascertain whether a master-servant relationship exists, "no hard and fast rule can be laid down" because this "must be determined from the facts of a particular case." ¹⁵⁵

The burden is on the plaintiff to prove the existence of a master-servant relationship. Four factors are considered to determine whether a master-servant relationship exists:

1. Selection and engagement of the employee;

2. Payment and compensation of the employee;

3. Power of dismissal of the employee; and

4. Power to control the employee. ¹⁵⁶

Of these, the first three factors are not absolutely essential to the existence of a master-servant relationship, although they are factors to be considered. The fourth element, the power or right to control, is usually regarded as determinative. ¹⁵⁷

Under Virginia law, a "servant" is a person subject to the command of the employer as to the manner in which the work will be done and a "master" not only prescribes the end to be achieved by the work, but also directs, or at least may direct, the means and methods by which the work is done. ¹⁵⁸ In

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Griffith v. Electrolux Corp., ¹⁵⁹ the Virginia Supreme Court observed that "[o]ne of the means of ascertaining whether or not this right to control exists is the determination of whether or not, if instructions were given, they would have to be obeyed."

If the employer directs only the end result to be accomplished but not the particular manner of methods by which the end result is to be achieved, the "employee" is not a "servant" in the context of vicarious liability. In this event, the "employee" is usually an independent contractor. ¹⁶⁰

2.902 Scope of Employment. If the plaintiff can meet the burden of establishing the existence of a master-servant relationship based on the foregoing principles, the plaintiff must then establish that at the time of the injury the servant was acting within the scope of employment. ¹⁶¹ To be within the scope of employment, the servant's act "[w]as fairly and naturally incident to his employer's business, was done while he was engaged upon his employer's business, and was done with a view to further his employer's interests." ¹⁶²

In Commercial Business Systems, Inc. v. Bellsouth Services, ¹⁶³ the Virginia Supreme Court affirmed that, ordinarily, issues of the existence of a master-servant relationship and whether a servant was acting within the scope of that agency or employment at the time of the injury are matters for a properly instructed jury to determine.

2.903 Specific Cases. The major Virginia Supreme Court cases analyzing whether the master-servant relationship exists in medical malpractice cases are summarized below. Because these cases turn on specific factual issues, no hard and fast rule can be stated for the application of vicarious liability in medical malpractice actions. The facts of a particular case should be reviewed and analyzed in light of this existing case law.

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In Peck v. Tegtmeyer, ¹⁶⁴ which regarded vicarious liability in the medical malpractice context, a federal district court, applying Virginia law, stated that Virginia does not recognize the "captain of the ship theory" of vicarious liability. The court held that this form of vicarious liability "does not carry with it traditional requirements of master-servant relationship." The court further commented that the Act contains no provision for vicarious liability, and the breadth of the statutory scheme suggests that none is intended. ¹⁶⁵ Because physicians, nurses, and hospitals all may be held liable in their own right, there is no basis or reason for holding a physician liable for the conduct of...