Negligence

• Jurisdiction: New York
• Author: Joseph L. DeMarzo, Esq.

Can a physician employer be held liable for the negligent acts or omissions of other physicians or nonphysician health care providers who are the physician’s salaried employees?

As a general rule, an employer may be held liable when, in the course of employment, an employee’s negligent²⁶¹ acts or omissions injure a third person.²⁶² The employer may be held liable only if the negligence was reasonably foreseeable.²⁶³

Can a physician employer be held liable for the negligent acts or omissions of other physicians or nonphysician health care providers who are independent contractors?

In general, an employer is not liable for the negligence of those not in his or her employ, such as independent contractors.²⁶⁴ However, the practitioner could be held liable if all appearances indicated that the independent contractor was an employee of the practitioner or if the practitioner was shown to have been negligent in the hiring, instruction or supervision of the independent contractor and to have known or to have had reason to know that the contractor was unqualified. Under those circumstances, the employer can be held liable for the negligence of the independent contractor in rendering services to a third party to the same extent as if the independent contractor were an employee.²⁶⁵

For example, if a physician operates a clinic-style practice, offering medical services to the public through any of the physicians practicing there, and the patient seeks care from the clinic rather than from a specific physician there, the practitioner who owns the clinic may be held liable for the malpractice of an independent contractor practicing at the clinic insofar as the patient relied on the clinic for appropriate care and reasonably assumed the physicians there were employees of the clinic.²⁶⁶

Can a practitioner partner in a medical practice partnership be held liable for the negligent acts or omissions of a physician or nonphysician health care provider employed by the partnership?

Yes. An individual partner can be held liable for the negligence of other partners or employees of the partnership, or of independent contractors hired by the partnership if the independent contractors appear to patients to be employees of the partnership.²⁶⁷

Can a practitioner shareholder in a professional corporation (“PC”) be held liable for the negligent acts or omissions of a physician or nonphysician health care provider employed by the PC?

A professional corporation can be held liable...