Hospital Malpractice

All clinical practitioners can be liable for medical negligence. In certain situations, it is possible for victims of alleged medical negligence to also sue the hospital, medical office, or professional association where they received treatment. 

Simply put, a hospital can be negligent if a hospital employee (including doctors, nurses, and other staff) does something improperly or fails to do something they were supposed to do, resulting in an injury.  If this is the case, the hospital may be liable for medical negligence. Situations that may give rise to liability on behalf of the hospital are countless, but some of the most common situations that may result from hospital negligence include: 

• Medication error, either by giving a patient the wrong medication or the wrong dosage; 

• Surgical error, which may include instances such as removal of the wrong body part, performing the wrong surgery, or leaving a sponge, instrument, probe, or other object in a patient’s body after surgery; 

• Misdiagnosis or failure to treat an illness, including failure to order proper tests or consult with a specialist; 

• Surgery performed on a patient without their informed consent; 

• Birth injury or trauma; 

• Failure to monitor or stabilize a patient properly, including failures resulting from staff shortages that compromise adequate patient care; 

• Improper use of a medical device; 

• Failure to ensure all hospital staff have the required education, training, certifications, and licenses; 

• Failure to maintain patient records, or loss of records; 

• Improper use of anesthesia, including administering it without proper precautions to minimize the chances of an allergic reaction; and 

• Failure to properly dress and treat wounds, which may cause an infection to develop. 

While this list certainly is not exhaustive, any of these occurrences may give rise to a medical malpractice action against a hospital for medical negligence.   

Under the doctrine of vicarious liability, an employer may be held liable for the negligence of its employees if the employee causes a patient an injury while the employee is on the job. In short, if a hospital employee is acting within the scope of their employment when the injury occurs, the patient may sue the hospital for medical negligence. While practitioners and healthcare providers are responsible for their medical negligence, hospitals can also be liable for negligence by their employees. 

Physicians, on the other hand, may not necessarily be hospitals’ employees for purposes of hospital negligence actions.  Just under half of physicians are independent contractors, and the hospitals often try to avoid responsibility for their medical negligence, even if the negligence occurred in the hospital. In determining whether a physician is an employee or independent contractor, the touchstone is whether the hospital has the “right of control” over the physician, i.e. whether the employer has the ability to control the employee’s provision of evaluation, diagnosis, or treatment services to patients. Some factors that may aid in determining whether a hospital has the right of control over a doctor include whether the hospital controls and/or supervises the physician’s working hours or sets fees that the physician may charge. Because the crucial factor to vicarious liability is an employee-employer relationship, hospitals often claim that the physician or staff member who caused the injury is an independent contractor, not an employee. 

Victims of hospital negligence may be entitled to compensation for medical bills and expenses, lost wages and/or pain and suffering, including physical pain, loss of quality of life and emotional distress. Beyond such monetary compensation, hospital negligence suits can incentivize hospitals to take the appropriate steps to prevent the same or similar mistakes from happening to another patient. 

If you or a loved one has been affected by hospital malpractice, it is critical to have an informed, detail-oriented, and dedicated medical malpractice attorney who will tirelessly advocate for you and your case. Please contact Andrew G. Slutkin and Ethan S. Nochumowitz for a free consultation at 800-385-2243.