Vicarious liability
The law provides that an employer is vicariously liable for the conduct of an employee. That
means that an employer is liable for the negligence of an employee.
The underlying principle of vicarious liability is that the hospital or health service, as an
employer, will be liable for the conduct of its employee or servant if the conduct is within the
employee's or servant's authority, whether it is in the form of an act which he or she is
employed to perform or an act which is incidental to that employment.20
This means that if a patient is treated negligently by a nurse or nurses at a hospital or health
service, the patient need only sue the hospital or health service. There is nothing preventing
the patient suing the nurse but it is rare for a patient to do so. Usually, a patient will sue the
hospital/health service and it is the hospital/health service (or its insurer) which pays the
damages award. If the patient sues the hospital/health service and/or the nurse individually, the
nurse usually is entitled to insurance under the hospital's insurance policy. In Victoria, the
Victorian Managed Insurance Authority ('VMIA') provides the insurance for all public hospitals
and health services and the insurance policy specifically covers those clinicians who are
employees of the public hospital or health service whilst treating the hospital's or health
service's patients.
Not only are hospitals and health services vicariously liable for the conduct of their employed
nurses, they are also vicariously liable for the conduct of their employed doctors.
A Visiting Medical Officer ('VMO') generally is an independent contractor rather than an
employee of the hospital or health service. VMOs are engaged by the hospital or health service
to provide medical services for public patients, usually with associated rights of private practice.
This means that generally as a matter of law, a hospital or health service will not be vicariously
liable for the acts and omissions of VMOs.21
The hospital or health service may, however, be liable under the principles of non-delegable
duty of care (discussed below). Further, in practice, the treatment of public patients by VMOs is
covered under the VMIA's Medical Insurance Policy, provided the treatment rendered was
provided by the VMO to a public patient of the hospital/health service or was referred to the
VMO from the emergency department for ongoing care following discharge from the
hospital/health service. A VMO is also covered under this policy if he or she refers a patient, as
a public patient, to the hospital's or health service's elective surgery waiting list.22
20 Deatons Pty v Flew (1949) 79 CLR 370, at p378 (Latham CJ)
21 Note that the title 'VMO' is not necessarily in itself conclusive and it is possible that a court may
find, in the circumstances, that a hospital is vicariously liable for the acts and omissions of a VMO
nevertheless. It has been said that 'the problem is to be solved by looking at the evidence in this
case to ascertain what it is capable of showing as to the relationship between the hospital and the
doctor, however they may be described. That evidence consists in the account of their activities
within the hospital, their use of, and compliance with, hospital forms and routine, and the operation
of by-laws ' Albrighton v Royal Prince Alfred Hospital [1980] 2NSWLR 542.
22
Clause 2, Medical Indemnity Insurance Policy, VMIA
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Non-delegable duty of care
In some circumstances a hospital or health service will be found liable for the negligence of a
nurse, doctor or other health care professional even though that nurse, doctor or other health
care professional is not an employee of the hospital or health service. This arises in
circumstances where the hospital or health service owes the patient a non-delegable duty of
care. A non-delegable duty of care may arise in an emergency or an elective situation.
In the context of provision of care by a hospital or health service, a non-delegable duty of care
is a legal duty of a hospital or health service owed directly to the patient which cannot be
divested by delegation. In those circumstances, the hospital or health service will be liable for
the breach of duty by any health care professional,
whether or not they are an employee.
It is a duty which, because of the particular nature of the relationship between the
hospital/health service and the patient, cannot be delegated to the health care professional who
provides the care. The duty remains at all times with the hospital/health service.
It has been said by the courts that the scope of the non-delegable duty of care depends on the
scope and nature of medical services which the hospital or health service has undertaken to
supply. If a hospital or health service accepts a patient who approaches it, thereby undertaking
to make available all the skills and devices which it is reasonably able to deploy, it is
responsible for ensuring that treatment or advice is given with proper care, and this duty cannot
be divested by delegation.23
For example, a non-delegable duty of care was held to exist in Albrighton v Royal Prince Alfred
Hospital so that the hospital was liable for the negligence of its honorary medical officers
because the hospital in that case was regarded as undertaking to provide reasonable care for
all the needs of the plaintiff, who had approached the hospital directly for treatment
, and whom
it had admitted. The court held that:
'Whatever legal duties were imposed upon those who treated, diagnosed or
cared for her needs from time to time, there was an overriding and continuing
duty upon the hospital as an organization'.24
This means that a hospital or health service owes a non-delegable duty to ensure that the
treatment which it undertakes to provide to a patient is performed with reasonable care.
A non-delegable duty of care may apply, therefore, when a patient approaches a hospital for
emergency care and is treated by a doctor in a private capacity and a Medicare benefit is
claimed for the treatment.
This non-delegable duty does not extend to treatment performed by a doctor who is not an
employee of the hospital or health service, however, where the patient directly approaches that
doctor and pays separately for his or her services, even though such treatment is performed at
the hospital or health service. In this situation the hospital/health service merely provides
facilities, nursing and other ancillary services and therefore is only liable if one of the facilities or
services it provides is responsible for the injury.
23 Ellis v Wallsend District Hospital (1989) NSWLR 553
24 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
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Therefore it is a question of fact as to whether the hospital or health service functions merely as
a platform from which a health care professional treats a patient, or whether it functions as a
place where a person in need of treatment goes to receive treatment. Only in the latter
situation will the hospital or health service be found to have a non-delegable duty to the patient.
Factors which may be taken into account to determine whether the treatment undertaken is
within the scope of the hospital's or health service's non-delegable duty of care include the
circumstances of the patient's admission, the arrangements (if any) regarding control by the
hospital or health service of the doctor's work, matters of remuneration and the doctor's
obligation to work.25
Yet not every aspect of patient care will be considered to be associated with a non-delegable
duty. For instance, it has been held that a surgeon, operating on a patient in a private capacity,
did not owe that patient a non-delegable duty of care such that he was liable for the failure of
theatre staff employed by the hospital to keep a proper count of sponges used in surgery.26
Therefore while a non-delegable duty of care can be held to exist, the courts can still limit the
scope of this duty.
As with any other duty of care, hospitals, health services and health care professionals can
manage their risks where a non-delegable duty of care exists. Standard risk management
approaches apply:
x work as a team;
x work within their approved scope of practice and in accordance with accepted
professional standards;
x comply with clinical guidelines or protocols that are appropriate and applicable to the
clinical situation;
x document comprehensively; and
x seek assistance when necessary.
