Negligent Hiring and Retention: Understanding the Risks of Vicarious Liability

When medical care goes awry and a malpractice claim is filed, the ultimate question is always the same: Who is to blame? The answer to that question can become increasingly complex as plaintiff attorneys explore contributing factors outside of the incident in question, attempting to place additional blame on the hiring and retention processes of medical practices.

When providers demonstrate a history of poor decision-making throughout their career, practice leaders can potentially be held responsible for negligent hiring and retention practices.

This can often result in significant awards that may not be covered by malpractice liability insurance.

A Claim of Negligent Hiring and Retention

A child presented to her primary care provider with complaints of flu-like symptoms, mild chest pain, and shortness of breath. Given her relatively benign symptoms, the child was released with a diagnosis of unspecified viral illness and instruction to visit an emergency department if symptoms continued or worsened. Shortly thereafter, the child experienced sudden heart failure as the result of undiagnosed myocarditis, resulting in her untimely death.

Though tragic, the case itself was medically defensible. However, the facts surrounding this incident were not the only factors that complicated the liability exposure.

While investigating the case, it came to light that the physician demonstrated a history of questionable decision-making. Documented complaints of boundary issues leading to improper prescriptions and resulting board of medicine discipline raised concern about the physician’s judgment prior to the incident in question.

When these facts were uncovered in pretrial discovery, the parents amended their lawsuit to allege that the practice group was negligent when deciding to hire and retain this provider, making them ultimately responsible for putting their child in harm’s way. The court found sufficient evidence to allow these allegations to be added to the lawsuit, which was ultimately resolved before trial.

“You Should Have Known”

A common tactic of a plaintiff attorney is to make the case bigger than the facts by introducing collateral evidence to suggest that the provider was a “bad actor.” However, prior “bad acts” and Board of Medicine discipline are generally inadmissible in court, making this strategy difficult. A recently emerging tactic for greater recovery in medical malpractice cases is proving vicarious liability via negligent hiring, credentialing, retention, or supervision.

While the law in this area differs from one state to another and is still evolving in some, the plaintiff may argue that the practice should have known better than to hire or retain a provider with a known propensity for dangerous decision-making, and thus should pay additional damages.

An employer becomes liable when the plaintiff can prove failure to use reasonable care when it should have been foreseeable that the provider posed a threat of injury to others.

Vicarious Liability

Negligent hiring and retention cases are examples of vicarious liability. Practice leaders and supervisors have a standard-of-care duty and can sometimes be held additionally responsible for the negligence of employees under their control. These allegations relate to negligent employee conduct while acting within the scope of his or her employment, resulting in passive or vicarious liability for the practice.

Strategies to Reduce Risk

1. Verify credentials. Prior to an employment offer, practice leaders should verify the identities of qualified providers and validate all medical credentials.
2. Investigate the character, competence, and ability of applicants. Practice leaders should explore a healthcare provider’s career history, taking particular note of disciplinary actions taken against the individual.
3. Perform a full background check. Comprehensive background checks should include professional references, criminal background checks, civil court databases, the National Practitioner Database, and online research tools such as Google, Yahoo, and social media sites.
4. Document patient and employee complaints as well as subsequent actions. All complaints against healthcare providers should be properly documented, and any action taken to remedy the situation or discipline the provider should be recorded.
5. Perform regular reviews with staff. Regular reviews should be conducted with all staff, particularly medical providers, to document continued acceptable job performance.

For further guidance on this issue, Curi members are also encouraged to reach out to our Claims and Risk Management Departments at 800.662.7917.

Disclaimer: This post is written in general terms and the case scenario herein is de-identified and altered to protect the confidentiality of the parties. This discussion is not a substitute for legal advice or intended to create an attorney-client relationship.

Sean Byrne, Esq. is the managing partner of www.byrnelegalgroup.com. He is a litigation attorney in Richmond, Virginia who represents hospitals, physicians, and other healthcare providers in the defense of medical malpractice cases. He is also an adjunct faculty member at the University of Richmond.