Answering your questions

By Barbara Harty-Golder MD, JD

Is this hospital legally liable in an employee fender-bender?

Q: Recently, one of our phlebotomists was sent on an errand by her supervisor to a nearby office supply store and had a minor fender-bender. The lab director was upset because she is afraid the hospital might be held liable. What is the institutions liability in this kind of situation?

A: Your lab director is worried about vicarious liability the liability under law of an employer for the wrongdoing of an employee while on the job. Under certain circumstances, an employer may, indeed, be responsible for the negligent or wrongful acts of an employee, if those acts are committed while on the job and within the scope of employment.

In the situation you raised, there is reason for concern. The phlebotomist, an employee of the hospital, was directed by her supervisor to drive to a store to buy supplies that were, presumably, essential for the job. Her accident, therefore, occurred while on company business, directed by the company (in the person of the supervisor) and on company time. It is a classic situation for vicarious liability, and, had the accident been serious, it is entirely possible the hospital might have been named in an ensuing lawsuit.

It is wise to assume that any action by any employee on company time, if logically and directly connected to work specifically directed by the institution or its policies and procedures, will subject the institution to liability if something goes awry. Thus, the hospital courier who has an accident exposes the hospital to liability as an employer who must take responsibility for the employees actions. Because the institution is far more likely to be solvent enough to pay substantial damages than is the individual, plaintiffs lawyers can be both creative and tenacious in connecting an employees negligence to the employers pocketbook. Avoiding such inadvertent risk exposure requires forethought, coupled with a dash of paranoia:

  • Draft clear policies that outline what employees may and may not do within the scope of their job descriptions then enforce it. One protection an employer has against vicarious liability is to prove that the employee stepped outside the scope of his position. For example, if the phlebotomist took it upon herself, without direction from her supervisor, to go get the supplies, the employer might escape responsibility. If there were a specific policy prohibiting employees from running such errands, the employer might be in even better shape. As admirable as it is for employees to show initiative in their jobs, it is also important for them to realize how, and why, they run the risk of creating legal problems for their employer, and to refrain from doing so. It is also important to give employees a basis in policy for refusing improper requests of their superiors.
  • Learn to shift liability whenever possible. This was a near-miss experience, but it may well happen again, in any of a number of guises: sending a tech to another lab to borrow reagent in an emergency, transporting a specimen to a reference lab for a stat test, even picking up a cake (during working hours) for a fellow employees retirement party. One way to avoid exposure is to sever the link to the employer. Call a cab to deliver the specimen or to fetch the required reagent, or use the delivery service from the office supply store.
  • If you cant shift the liability, make certain that duties are delegated only to responsible and capable individuals and when the duty is an unusual one, have some records of checking qualifications. Errand running is not a usual activity of phlebotomists, nor is sending out for office supplies an everyday occurrence in most labs. It makes sense, then, to take some steps to insure that the most qualified individual is tapped for the job. In this scenario, it would be exceptionally bad news, for example, for the employer to find out (after the fact) that the employee sent on the errand was driving on a revoked or suspended license, had no required automobile insurance, or had been convicted of several moving violations in the last year or two. If errands must be run, have individuals to whom this job is delegated, screen them well for competency and for compliance with state law regarding licensure and automobile insurance, and obtain adequate insurance for the institutions own exposure.

Barbara Harty-Golder is a pathologist-attorney in Sarasota, FL. She directs the clinical laboratory at Health South Rehabilitation Hospital in Sarasota, and maintains a law practice with a special interest in medical law. She writes and lectures extensively on healthcare law, risk management, and human resources management.

February 2003: Vol. 35, No. 2

© 2003 Nelson Publishing, Inc. All rights reserved.

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