It may not seem that common but it’s much more likely than you think that an employer ends up being responsible for an employee’s negligent actions. This is known as respondeat superior. It is considered holding the boss in charge instead of the employee itself since they are the superiors. This can open up lawsuits to companies and medical facilities for example because the injured party may choose to only sue the employer and not the employee. If the individual working for the company is an independent contractor that means the company of medical facility cannot be sued because the individual is technically not an employee.
Employers are liable for their employee’s negligent actions if the employee committed the negligent act while in the course and scope of employment with the employer. This is known as the doctrine of respondeat superior or “let the master answer.” If, for example, an employed nurse from a medical clinic was negligent and injured a patient then the patient could choose to only file suit against the medical clinic for the nurse’s actions. The medical clinic would have to “answer” for the nurse’s actions if her actions were in the course and scope of the nurse’s employment at the clinic.
In the hospital or surgical setting, however, identifying the employer can be more difficult. A doctor or surgeon working at a hospital is not necessarily an employee of the hospital, but rather an independent contractor with privileges to provide services at the hospital. Where the doctor is not employed by hospital, then the hospital cannot be sued under the doctrine of respondeat superior for the independent physician’s negligent actions. Sometimes even the nurses are not technically employed by the hospital, but rather through an outside group, e.g., a traveling nurse. The laboratories used by hospitals are often entirely separate companies. Indeed, even “night hawk” radiology companies provide radiology services from other states and even other countries. It is important to identify early on who the medical provider is technically employed by to ensure that company or entity is named in the lawsuit.
Where a hospital or clinic employs doctors, nurses, and laboratories who work on a contract basis, the law looks beyond the technical identity of the employer to the relationship to determine if that provider is an employee of the hospital or clinic. In New Mexico, “(t)he primary test to determine whether a(n) employer-employee relationship exists is the extent of the employer’s right to control the details of the work of the employee.” “In determining whether an employer has the power to control an employee, a court should consider (1) direct evidence of the employer’s power to control the manner and means of performance of the employee, (2) the method of payment of compensation, (3) whether the employer furnishes equipment for the worker, and (4) whether the employer has the power to terminate the employee at will.” Typically, these are questions of fact that are submitted to a jury to determine.
If you are a employer managing a set number of employees and you believe you could be sued because of their negligent actions you need to take action to defend yourself and your company. We can talk you through the best course of action if you believe you will be involved in a lawsuit that affects the company you work for. Give us a call at (505) 242-7200 and we will be happy to help. The Davis Kelin Law Firm handles cases throughout all of New Mexico. We are Super Lawyers with an aggressive trial approach to get you the results you deserve!