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Vicarious Liability; are hospitals vicariously responsible for the misfeasance of medical personal?

Vicarious Liability; are hospitals vicariously responsible for the misfeasance of medical personal?

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An essay for the 2012 Undergraduate Awards Competition by Catherine Corcoran. Originally submitted for Civil Law at National University of Ireland Galway, with lecturer Dr. Ursula Connolly in the category of Law
An essay for the 2012 Undergraduate Awards Competition by Catherine Corcoran. Originally submitted for Civil Law at National University of Ireland Galway, with lecturer Dr. Ursula Connolly in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
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Vicarious Liability; are hospitals vicariously responsible for the misfeasance of medical personal? 
500 word abstract
effectively outlining the content of your paper/project.Vicarious Liability is the non-statutory defined concept of the modern legal system that provides theemployer is liable for the misdemeanours of employees despite the employer having no role in theculpable act or omission. This cornerstone of the law has been unequivocally adopted in mostcomponents of the progressive, modern justice system. However, despite this fact, the idea of vicarious liability has been met with antagonism in the medical sector. The variety of legal tests suchas the control test employed by the courts to determine the liability of employers for theiremployees resulted in the exclusion of highly skilled medical practitioners as they were deemed to
be “outside the control” of the employing hospital. No hospital could purport to be in control of the
actions of their surgeons, doctors or nurses while they operated and diagnosed patients hence theirlegal culpability could not be established. With a host of judicial decisions upholding this somewhat
questionable legal precedent, the courts laboured to reverse the tide on the hospitals’ discretion.
My essay striv
es to explore the decisions that have created the onus of liability for hospitals’ for
their medical personal.My essay effectively seeks to decipher some of the quandaries surrounding the quagmire that is
modern hospital’s vicarious liability. The case la
w has accumulated throughout the decades and myessay strives to create a coherent and codified anthology of the law on this much benighted yetimportant area of the law. By concentrating my essay on a hypothetical case, Dante v. Soprano, theaim of my essay was to delve into this somewhat technical and complex body of law in a tangibleway creating submissions that would be the focus of any real court case on the topic.Too often profound and multifaceted analyses of the law, in the form of pure academic law essays,lose touch with the real, quotidian application of the law. The goal of my essay was to create a wellwritten analysis of the law around the topic of vicarious liability of hospitals in a manner that lendsitself to what could be in an actual court case. By incorporating the hypothetical case of Dante v.Soprano, my essay offers a unique blend of principle and application.My essay offers a critical overview of the antecedent of the aforementioned legal predicament andthe solutions which were offered to the judicial challenge. With discourse, I offer insight into whatboth an appellant and respondent would argue if such a case came before the Supreme Court. Thiscombination of acute and perceptive legal theory with an effectual application of the law upon aconcrete set of facts gives this essay a distinctive and inimitable approach that offers a fresh take onthe essay writing experience.
Vicarious Liability; are hospitals vicariously responsible for themisfeasance of medical personal? 
Vicarious Liability is a species of strict liability. It is not premised on any culpable act or omission onthe part of the employer; an employer who is not personally at fault is made legally answerable for the fault of his employee. It is best understood as a loss distribution device
-Lord Millet in
Lister v Hesley Hall Ltd 
 In law, there is no clear statutory definition of vicarious liability. Vicarious liability is not itself a tortbut merely a strict liability principle used to determine the liability of others. The maxim
qui facit per alium facit 
best describes this legal concept. It prescribes that a person who operates through
another is himself responsible for that person’s misfeasance.
It is a paradigm of the common law evolving to meet changing needs and trends in society 
The idea of vicarious liability is succulentlydefined as making an employer liable for the misdemeanours of employees despite the employerhaving no role in the culpable act or omission.Traditionally vicarious liability only applied in the context of master and servant types of situationsand hence an independent contractor employed on a contract for services was held liable for hisown omissions.
When attempting to widen the ambit of the employer’s liabilit
y, courts created the control test. This
test examined if the level of control exerted over the employee’s actions was of such a propensity to
render him under the control of the employer. Problems arose when the control test was applied toclinical situations. The hospital authorities would argue they had no control over the surgeon whenthat surgeon operated on their patients. This idea was accepted by courts in a number of leadingcases such as
Hillyer v Governors of St Bartholomew’s Hospital 
where it was held nurses in asurgical theatre were not employees of the hospital as their orders were controlled by the surgeon.Similarly in
Collins v. Hertfordshire CC 
Evans v Liverpool Corporation
, other hospitalauthorities were relegated of their respons
ibility as they had no control over the practitioner’s
clinical practice of their skill.Eventually in the breakthrough case of 
Gold v Essex County Council 
the courts stipulated that ahospital was vicariously liable for the misdeeds of a radiographer. In the same case the ambit of liability was extended to include all permanently employed doctors and nurses by any hospital.
Lister v Hesley Hall Ltd 
[2002] 1 AC 215 at para 65
Paul T Rose QC,
The Evolution of Vicarious Liability in Tort in Respect of Deliberate
, February2009, Old Square Chambers (http://www.oldsquare.co.uk/pdf_articles/3100178.pdf)(accessed 13/03/12) 
Hillyer v St Bartholomew’ 
s Hospital 
[1909] 2 KB 820
Collins v. Hertfordshire CC 
[1947] KB 598
Evans v Liverpool Corporation
[1906] 1 KB 160
Gold v Essex County Council 
[1942] 2 KB820
Further developments occurred in the seminal case of 
Cassidy v Minster of Health
where DenningLJ held a hospital was liable for the actions of all medical staff permanently employed under acontract of services.Clarification in the Irish context came with the pivotal case of 
Byrne v Ryan
where Kelly J sided withDenning LJ in
and Morris LJ in
Roe v Minster for Health
and found that the main issue indetermining vicarious liability was integration of the individual into the daily workforce of theHospital. Kelly J in
found the negligent consultant Dr. Murray, who had worked in the CoombeHospital from 1969 to 2001, was undoubtedly part of the hospital base and the hospital heldresponsibility for his actions. Kelly J denoted
‘He was part of the “organisation” or perman
ent staff of the hospital. The performance of theoperation was part of a service provided by the hospital to the plaintiff. Dr. Murray was the person in
the hospital's organisation via whom that service was provided.’ 
 With this one can denote that the integration or organisation test is a key element in determining a
hospital’s vicarious liability. One must examine if the consultant is an integrated part of the hospital
community or merely an
‘Independent Contractor... Under a contract for 
services, since he does not regularly work as part of 
the employer’s business but provides services on a once
-off or ad hoc basis for the party who hires
 Difficulties arise when an independent consultant is hired for an ad hoc operation at the behest of the patient. This person is not integrated into the staff base of the hospital but should this relegate a
hospital’s liability? Or is it as Madden notes, ‘
now the case that the hospital is responsible for all 
medical staff who treat patients.’ 
One can best examine these intricate questions of law by practically applying them to a set situationwhere the facts mirror the problems faced in this area of vicarious liability. One might examine thehypothetical case of 
Dante v. Soprano
This case examines if St Silvo’s
Hospital is vicariously liable for a consultant gynaecologist, Mr EvanDaly. Mr Daly was hired under a contract for services to perform a tubal litigation on Ms Soprano,
the plaintiff’s mother. The operation was performed negligently and the plaintiff was
conceived after
the faulty operation. The plaintiff chose to sue the hospital for an array of damages and St Silvo’shad to prove no liability existed for the consultant’s negligent omissions.
The plaintiff, Mr Francis Soprano, won his case in the High Court. However, St Silvos, acting throughMr Dante, a consultant radiologist and member of the Trustee Board for St. Silvos Hospital, chose to
Cassidy v Minister of Health
[1951]1 All ER 574, here by in
Byrne v Ryan
[2007] IEHC 207, here by in
Roe v Minster for Health
[1954] 2 QB 66
Kelly J in
Byrne v. Ryan
[2007] IEHC 207
John Healy
Principles of Irish Torts
(2006) Clarus Press pp.44 (paragraph 2.57)
Deirdre Madden
Medical Law in Ireland 
(2011) Wolters Kluwer pp.54 (paragraph 121)

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