NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

LAW OF TORTS
PROJECT
on
Vicarious Liability in hospitals

submitted by
Shreeji Patel
Enrolment Number: A-2386
Roll Number: 2021BALLB89
I Semester
B.A. LL.B. (Hons.)

submitted to
Prof. ( Dr.) Rajiv Khare
Date of submission: 14 November 2021
 DECLARATION

I, Shreeji Patel D/o Mr. Pawan Kumar Patel, Roll Number 2021BALLB89, Enrollment Number
A-2386, do hereby declare that the Doctrinal Research on Vicarious Liability in hospitals is an
outcome of my own independent research endeavor and has been carried out under the guidance
of Prof. (Dr.) Rajiv Khare. Literature relied on by me for the purpose of this Project has been
fully and completely acknowledged in the footnotes and bibliography. The Project is not
plagiarized and all reasonable steps have been taken to avoid plagiarism. Similarity Index as per
the Turnitin Report is %. In case, my project is found to be plagiarized, the course teacher
shall have the full liberty to ask me to revise the Project. If I fail to comply with the instructions
of the teacher, my project may be referred to the Committee against Use of Unfair Means and I
will comply with the decision of the said Committee.

Date: 14 November 2021 Name and Signature of Student

Enrolment Number: A-2386 Roll Number: 2021BALLB89

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 TABLE OF CONTENTS

DECLARATION i
ACKNOWLEDGEMENT ii
INTRODUCTION iii
REVIEW OF LITERATURE iv
STATEMENT OF PROBLEM iv
HYPOTHESIS v
OBJECTIVES OF STUDY v
RESEARCH QUESTIONS v
RESEARCH METHODOLOGY v
ESSENTIALS OF VICARIOUS LIABILITY 1
THEORY BEHIND VICARIOUS LIABILITY 2
VICARIOUS LIABILITY IN MEDICAL CARE 3
COMMON DEFENCES 4
JUDICIAL INTERPRETATION 5
CONCLUSION AND SUGGESTIONS 10
BIBLIOGRAPHY 11
 ACKNOWLEDGEMENT

For the completion of this project, I would like to extend my warm gratitude towards those,
without whose guidance and help, this project might not have been completed on time. I
acknowledge my deep gratitude towards:
Prof.(Dr.) V.Vijaykumar, Vice chancellor, National Law Institute University Bhopal, for
providing me the means to make the project.
Our Law of Torts teacher, Prof. Rajiv Khare who provided me the opportunity to prepare a
project on a topic which made me gain a lot of knowledge and come across new things. I am also
thankful to the NLIU library which helped me to access the necessary resources required for the
study of this project topic.
Lastly, I would also like to thank my family and friends, who gave me the encouragement and
the required support to complete my project work.

Introduction
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Vicarious liability of hospitals in medical negligence cases arises when an employee has acted
negligently and the hospital is indirectly liable for its employee’s actions. The rule of vicarious
liability in medical negligence is applied to the hospitals because hospital is the employer and
the doctors are its employees and the rule of vicarious liability India states that for negligence
cases of employees an employer is liable thus the rule arises the vicarious responsibility in
hospitals.

In claims of vicarious liability against a hospital, a plaintiff must prove that the employee or
agent was either the hospital’s actual agent or apparent agent.

1 While the existence of an agency relationship is generally a question of fact, a court may
decide the issue as a matter of law if only one conclusion may be drawn from the undisputed
facts.

2 The principal consideration for determining whether an agency relationship exists is whether
the agent retains the right to control the manner of doing his or her work.

All medical professionals, doctors, nurses, and other health care providers are responsible for the
health and safety of their patients and are expected to provide a high level of quality care.
Unfortunately, medical professionals and health care providers can fail in this responsibility to
their patients by not giving them proper care and attention, acting maliciously, or by providing
substandard care, thus causing far-reaching complications like personal injuries, and even death.
Over the years the function of the hospital has slowly changed from ‘a venue for treatment’ to ‘a
provider of treatment.’ Therefore there have been many interpretations of courts in the principle
of vicarious liability.

Review of Literature
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• LAW OF TORTS by RK. Bangia . 1

This research project used this reference to understand the essentials of vicarious liability. This
book provides us with the evolution of vicarious liability in hospital cases. it also put forward
arguments for why hospitals should be liable .through different situations and example this book
tries to explain the conditions under which hospitals would be held liable. It elaborates the
meaning of various terms and theories which really helped to understand the basics of vicarious
liability.

• Arthur F. Southwick, Vicarious Liability of Hospitals, (1960) 2

This law review take us back to the history and talks about its appliance under common law
system .it also helps us understand use of vicarious liability in US and England. Reference to
various cases and immunity theory throw light on the defenses used by hospitals, it also throw
light on various trends in the applicability of this doctrine.

• Blog-Medical negligence: Liability of hospitals3

This blog is written by student of amity law school and give us the insight of when does
the liability arises. Elaborate on the concept of medical negligence of hospitals. It
analyzes the details like who has the onus to prove and they ways hospital may try to
escape the liability.

Statement of Problem

the most noteworthy that is the rising inclination, aside from immunity, to impose vicarious
liability on facts where none would have been imposed hitherto. By several prominent decisions
it no longer follows that a professional Courts find it difficult to resolve the issue when hospitals
try to escape the liability by pleading on issues like doctors were not in the course of
employment or have taken proper duty of care.

1
RK . Bangia, Law of Torts(26th Edition), Allahabad Law Agency,2021
2
Arthur F. Southwick, Vicarious Liability of Hospitals, 44 Marq. L. Rev. 153 (1960) )
,< https://core.ac.uk/download/pdf/148691246.pdf > accessed on 1 November 2021
3
RF and others, “Medical Negligence: Liability of Hospitals” (iPleaders November 29, 2016)
<https://blog.ipleaders.in/medical-negligence-liability-hospitals/ >accessed November 1, 2021

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Hypothesis

There is not just a single factor to determine the definition of an employee. Therefore we need
interpretation of all the factors.

Method of Study

The researcher has adopted a purely doctrinal method of research and has also used secondary
material

Objectives of the Study

The objectives of the study are:

1. To study the principles of vicarious liability in hospital.

2. To study when vicarious liability arises and is applied

3. To read and analyze latest judgment of Supreme Court in hospital cases.

4. To study the loopholes and defenses of vicarious liability.

Research Questions

1) What are the theories related to vicarious liabilities?

2) What are the defenses in vicarious liability?

3) When vicarious liability is applied in hospitals?

4) What are the judicial interpretations on vicarious liability of hospitals?

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Vicarious Liability: Essentials

The following are the key elements of vicarious liability:

1) There must be some form of relationship between the parties.

2) The wrongdoing must be perpetrated by someone else.

3) The wrongdoing must occur while the employee is on the job.

Vicarious Liability Reasons

The following are the arguments for holding the master responsible for his servant's actions:

 A servant is nothing more than an employee who is directed and overseen by his boss. So
the servant works for the master, which means he does the work in the way the master
wants it done. As a result, the master must bear responsibility for the servant's acts.
 The master always reaps the benefits of the servant's work, thus he must also endure the
loss incurred by the servant's activities, but only during the course of employment.
 The master is more financially secure than the servant. As a result, the master is better
suited to pay for the damages created by the servant's tortious act. However, masters are
permitted to take reasonable care and precautions to avoid such circumstances.

Superior Respondent Theory

⦁In medical malpractice cases, the concept of respondent superior' is frequently employed to
determine vicarious culpability. This phrase literally means 'let the master respond.' In other
words, an employer, such as a hospital, must be held liable for an employee's negligence, such as
that of a doctor.

⦁However, there are a few conditions that must be followed before the respondent superior can
apply. These requirements show that an employee was acting within the scope of his or her job
when he or she was negligent.

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The following are the most important criteria:

 During defined work hours, the employee was negligent.

 The carelessness happened while the employee was employed and paid to undertake a
specific activity or assignment.
 The conduct that resulted in the negligence was also beneficial to the hospital in some
way.

Consider the following scenario: a doctor misdiagnosed you during hospital treatment, resulting
in pain and injury. To determine vicarious culpability, it must be determined whether the doctor
was a full-time employee performing his duties.

Relationship between the employer and the employee

It's crucial to establish an employer-employee relationship before applying vicarious liability in a

malpractice case. Both full-time and independent contractor doctors may be employed by a
healthcare facility.

Independent contractors—these individuals may work at the site for personal gain and outside
of the scope of job

Employees who work full-time, on the other hand, only labor during business hours. A full-
time employee has a 'right to control' by a hospital.

The rights to define the method a doctor may use to admit evaluate, and treat a patient is known
as the 'right of control' in medical law. A hospital may be held accountable for a doctor's
carelessness if it has this right as an employer. Vicarious liability may be more difficult to
establish if this right does not exist.

In Medical Care, Vicarious Liability

 The hospital or the doctor is vicariously accountable for any misconduct committed by an
employee at a medical facility. Nurses, technicians, physicians, lab assistants, the
administrative department, and other staff members are among the workforce.

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  Because the hospital is liable for all of its employees, vicarious responsibility aids in the
improvement of hospital conditions. As a result, the hospital or other medical institution
concentrates on adequate qualifications and credentials for workers to do their jobs, but
this does not apply to a healthcare practitioner who is a hospital's independent contractor.
 A, for example, had surgery at XYZ hospital, and the surgery was conducted by Doctor
Who. The procedure went well, but Doctor Who forgot to remove his ring from A's
stomach. Doctor Who is liable for negligence in this situation; however A can sue both
XYZ hospital and Doctor Who because the hospital is responsible for the activities of the
doctors.
 When you go to a medical center for treatment, you are usually seen by more than one
doctor. Other doctors may pay you a visit to assist with diagnosis, a technician may do
Medical tests on you, and a nurse may perform a range of other jobs. When medical
malpractice happens in such a scenario, determining who was to blame is more difficult.
The notion of vicarious liability may apply in these and other situations. When a parent or
superior entity, such as a hospital, is held liable for the negligence of its employees, this
is known as vicarious responsibility. In doing so, the respondent superior principle is
applied in a malpractice case.

When Does Hospital Vicarious Liability Apply?

1) The parties must have a certain type of relationship.

2) The wrongdoing must be perpetrated by someone else.

3) The wrongdoing must occur while the employee is on the job.

If the foregoing conditions are met, a hospital may be held accountable for the following types of
employee carelessness or errors:

Misdiagnosis

Administering the incorrect or inopportune medication, or failing to provide one at all when
necessary

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1) Mistakes and errors in surgery

2) Inadequate patient monitoring

3) Not following up with a patient

4) Doctors' Vicarious Liability

A doctor is often in charge of supervising and overseeing a group of other healthcare workers,
such as nurses and technicians. The doctor may be held accountable if a member of this team is
negligent and fails to offer a high-quality standard of care.

Common Vicarious Liability Defenses

A) Employers frequently argue that vicarious liability does not apply since the irresponsible
party does not fulfill the criteria of an employee. This is especially true if the person who was
irresponsible was an independent contractor.

b) A hospital may also argue that the doctor or professional who made the error wasn't acting
within the scope of their employment or wasn't working within defined hours.

Such defenses can be overcome by carefully examining the irresponsible individual's

employment agreement. A smart attorney can take advantage of any ambiguity or lack of clarity
in the agreement to your benefit. Hospitals are finding it more difficult to avoid accountability
for acts of professional negligence that occur within their gates. Traditionally, hospitals were
held accountable for the negligent acts of their workers or agents under the notion of respondent
superior.

There are two types of vicarious liability in use today.

A) First, on the theory of actual agency, a hospital may violate the standard of care and be held
liable for the activities of its actual employees.

B) Second, under the idea of seeming agency, a hospital may violate the standard of care and be
held accountable for the activities of implied agents who are not hospital employees but
independent contractors.

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A plaintiff must show that the employee or agent was either the hospital's actual or apparent
agent in a vicarious liability action against the hospital.

1 While the existence of an agency relationship is normally a question of fact, if only one
conclusion can be made from the undisputed circumstances, a court may rule the issue as a
matter of law.

2 The main factor in assessing whether an agency relationship exists is whether the agent retains
control over the method in which he or she performs his or her duties.

Interpretation by the courts

Rishabh Sharma v. Maharaja Agrasen Hospital, 2019 4

The Supreme Court of India observed in the case of Maharaja Agrasen Hospital v. Master
Rishabh Sharma that any acts of negligence performed by doctors who are empanelled to offer
medical care and are linked with hospitals will make the hospitals vicariously accountable.

The NCDRC order to hold a hospital vicariously liable for the negligent medical acts of doctors
who allegedly failed to perform the mandatory check up of Retinopathy during a pre-term of a
premature baby that leads to total blindness was upheld by Justice Uday Umesh Lalit and Justice
Indu Malhotra as a bench.

The Bolam Test, which was established in the case of Arun Kumar Manglik v. Chirayu Health
and Medicare Ltd. 5was alluded to by the court.

Any doctors or medical professionals who fail to prove that they took reasonable and appropriate
care of the premature newborn, as well as other medical negligence verdicts, were held liable,
and the mandated screening and checking up for ROP were observed. According to the court,

"A medical practitioner should be aware of the hazards and risks associated with every
professional work he does to the same degree that other typically competent members of the

4
(2020) 6 SCC 501
5
(2019) 7 SCC 401

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profession are aware." He must apply reasonable skill to any activity he does, as would other
typically competent members of his profession.”

The youngster and his mother were awarded compensation in the amount of Rs. 76,00,000/-, and
the bench also issued instructions on how the money should be used.

"It is a typical occurrence that when a patient goes to a hospital, he or she goes there because of
the facility's reputation and in the hope that the hospital authorities will provide due and right
care. If a hospital fails to execute its responsibilities through doctors who are engaged on a work
basis, on a contract basis, or on a job basis, the hospital must defend the acts of commission or
omission on behalf of their doctors."

The court went on to say that the following activities constitute medical negligence:

1) The medical professional has a legal obligation to use reasonable care;

2) Failure to notify the patient about the potential hazards;

3) The patient experiences harm as a result of the medical professional's failure to disclose the
risk;

4) If the danger had been disclosed, the patient would have made an informed decision.

5) Breach of the abovementioned duty would give rise to an actionable claim of negligence.

• Harm, is an essential part of tort and when the damage occurs the cause of action of
carelessness shall come into the picture.

• The burden to proof in the complaint of medical negligence is on the complainant to prove that
there was a breach of duty, damage and causation.

• The injury should be sufficiently proximate to the medical practioner’s breach of duty.

• If the evidence is missing to the contrary adduced by the other side, an inference of causality
will be formed even if the positive or scientific proof is lacking.

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Duty of care

 The omission in exercising a fair degree of competence and knowledge to the patient, to
whom he owes a duty of care, which has resulted in injury to such person is actionable
medical negligence.
 In order to adjudge whether medical professional is to be accused as negligent or not it is
needed to see if while fulfilling the duty, he is functioning as an ordinary prudent and
competent person exercising his usual expertise in the profession.
 The law does not expect extremes of exercising his care, it requires neither extremely
highest not a very low degree of care and competence to adjudge whether the medical
profession is negligent or not.

The Court goes on to explain,

“It is common experience that when a patient goes to a hospital, he/she goes there on account of
the reputation of the hospital, and with the hope that due and sufficient care will be given by the
hospital authorities. If the hospital fails to fulfill their duties through their doctors, whether
employed on employment basis or employed on contract basis, it is the hospital which has to
justify the acts of commission or omission on behalf of their doctors.“

Hospital liability

“It is accepted law that the Hospital is vicariously accountable for the activities of its doctors.
Similarly, the State would be vicariously accountable for the damages which may become
payable on reason of carelessness of its doctors or other employees.”

The employer is accountable not only for his acts and omissions but also for those of his
employees, as long as such acts occur within the course and scope of employment.

This responsibility is based upon the maxims

1. “respondent superior” which means “let the master answer” and

2. “qui facit per alium facit per se” which means “He who acts through another does the act
himself.”

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An exception to the above principle is exemplified in the “borrowed servant doctrine” according
to which the employer shall not legally accountable for activities of an employee when the
employee is working under the direct supervision of another employer.

For example-when a surgeon employed by one hospital visits another for conducting surgery,
the other hospital where the procedure is performed would be accountable for the acts of the
surgeon.

The Problem-However, in contemporary times most doctors are not employees of the hospital
and are independent contractors instead. Whether or not a doctor is an employee of the hospital
would depend on upon the nature of his/her relationship with the facility.

• But a hospital cannot escape its liability by merely arguing that it cannot suo moto perform any
operation or amputation and that it offered only infrastructural facilities, nursing services,
support workers, technicians.

• Thus it was held in the matter of Smt. Rekha Gupta v. Bombay Hospital Trust and Anr.6 by the
National Consumer Disputes Redressal Commission that

• The hospital is not only accountable for the staff it provides but also for independent
contractors such as anesthetists/surgeons or doctors in some cases–who admit or operate a
particular case.

In Joseph Alias Pappachan v. Dr. George Moonjerly,7

• it was held that “persons who administer hospitals are in law under the same obligation as the
humblest doctor: whenever they take a patient for treatment, they must use reasonable care and
skill to ease him of his condition.

• The hospital authorities cannot, of course, do anything by themselves; they have no ears to
listen to the stethoscope, and no hands to handle the surgeon’s scalpel.

6
2003 (2) CPJ 160 (NCDRC)
7
1994 (1) KLJ 782 (Ker. HC)

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• They must do it by the personnel which they engage; and if their staff are careless in giving
treatment, they are just as culpable for that negligence as anyone else who employs people to
fulfill his tasks for him

State Liability in government hospital

• Running a hospital is a welfare activity conducted by the Government but it is not an exclusive
function or activity of the Government so as to be recognized as one which may be viewed as
being in exercise of its sovereign power.

• In pursuit of the welfare ideal the Government may enter into numerous economic and other
activities which have no link to the traditional definition of governmental activity in exercise of
sovereign power. Just as operation of passenger buses for the benefit of the public is not a
sovereign duty, so the running of a hospital, where the members of the general public can come
for treatment, cannot also be seen as being an activity having a sovereign character.

• This being true, the State would be vicariously liable for the damages which may become
payable on consequence of carelessness of its doctors or other personnel.

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 CONCLUSION AND SUGGESTIONS

A trend in the law of hospital liability is individual exercising his own expertise, judgment and
discretion in regard to the means and methods of his employment is an independent contractor.
The hospital may not in any meaningful sense control the staff physician, intern, or nurse in their
medical operations; still there is frequently vicarious liability for their negligent professional
acts.

Some courts consider the payment of a salary to be more essential than the actor's ability to
regulate his or her work. Gradually, the test of hospital liability for another's behavior is
becoming merely an issue of whether or not the actor causing injury was a part of the medical
care organization.

Those courts that apply the ostensible agency approach to suitable facts find vicarious liability
where the hospital has persuaded the patient to believe that another was in its employ and under
its direction. As previously stated, traditional legal standards for vicarious responsibility based
on the existence of a real master-servant connection with the servant acting under the master's
direction in the furtherance of the latter's business do not apply. It also doesn't match the
contemporary trend of merely asking if the actor was in fact and actually a member of the
hospital organization, because it focuses on the actor's work rather than the true link between the
actor and the defendant institution.

Regardless of the societal merits or demerits of the idea as articulated, it is suggested that courts
must exercise caution in applying the concept only to cases in which the hospital has knowingly
misled the patient about the identification of the responsible party. The imposition of vicarious
accountability must come to an end at some point. Misunderstanding or misapplying the apparent
agency principle can only result in a blurry line between responsibility and non-liability for
someone else's tortious conduct. In any case, it appears that the law is progressing to the point
where the only obvious line of demarcation is when the patient has explicitly and expressly hired
and paid his own private physician or nurse. Otherwise, the hospital's defense argument that the
irresponsible actor was a freelancer is unlikely to succeed.

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 BIBLIOGRAPHY

Books:
• Bangia RK ,Law of Torts (Allahabad Law Agency Publishing 2019)
Articles:
• Arthur F. Southwick , “Vicarious Liability of Hospitals” (1960) 44 Marq. L.
Rev. 153 < https://core.ac.uk/download/pdf/148691246.pdf > accessed on
1 November 2021
Blogs:
• RF and others, “Medical Negligence: Liability of Hospitals” (iPleaders
November 29, 2016) < https://blog.ipleaders.in/medical-negligence-liability-
hospitals/ > accessed November 1, 2021

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