You likely have read stories in recent years about the rise of the so-called “gig economy,” referring to the increasing number of people whose work arrangements are temporary, project-based, or based on an independent contractor rather than employee relationship.
In the practice of medicine, and hospital settings in particular, doctors have engaged in these types of arrangements for years, with more and more doctors and other clinicians treating patients on a “locum tenens” basis.
What Is Locum Tenens and How Does It Work?
Hospitals are like any other large business or organization in that staffing and personnel issues often arise. Whether due to maternity leave, retirements, unexpected departures, or an increase in needs, hospitals often need short-term fixes to a shortage of physicians. Enter locum tenens doctors.
Locum tenens is Latin for “to hold the place of,” which sounds better than “temp.” While their employment status may be different than doctors employed full-time by a hospital or those in private practices who have staff privileges, these doctors are held to the same standard of care as other physicians when treating patients. When a locum tenens doctor makes a mistake and commits medical malpractice, questions often arise as to who is liable for the harm they cause. This can be a tricky question.
Typically, physicians looking for temporary opportunities contract with locum tenens recruitment agencies to perform medical services for a hospital or healthcare organization for a specified or limited period. The physician works as an independent contractor paid by the staffing agency, which in turn is paid by the hospital or facility. The staffing agency will also provide the doctor with medical malpractice insurance.
Physicians who work on a locum tenens basis do so for a variety of reasons. Not wanting to work full-time or deal with the paperwork and non-clinical aspects of practicing medicine are often the motivations. But sometimes, a physician will be looking for a locum tenens position because of past issues or problems which have made permanent employment difficult to find.
Is the Hospital Liable?
When a doctor engages in professional negligence, whether by making a misdiagnosis, a surgical error, or other medical mistake, that doctor is ultimately responsible for the damage caused by his or her negligence. But the individual physician is not the only one who can be held accountable. Under Michigan law, when a doctor employed by a hospital commits medical malpractice, the hospital can be held responsible along with the physician under the legal concept of “respondeat superior.” This principle provides that an employer can be liable for the negligent acts of its employee if the employee was acting within the scope of his employment.
Even though locum tenens doctors are not hospital employees, hospital malpractice liability can still attach to the hospital under the concept of agency. In an agency relationship, it is the power or ability of the principal, in this case, the hospital, to “control” the agent that justifies the imposition of vicarious liability. Under Michigan law, a hospital will not be held vicariously liable for the negligence of a physician who is an independent contractor unless the hospital has assumed control over the physician, and more specifically, control over the “method” of the physician’s work.
This issue of “control” is very fact-intensive, and whether a hospital will be held responsible for the negligence of a locum tenens physician will depend on the specifics of the working relationship and arrangements between the hospital and doctor.
What About the Staffing Agency?
Locum tenens staffing agencies who place doctors at hospitals usually verify a physician’s credentials and professional history before referring them to the hospital. If a staffing agency refers a doctor whom it knows may pose a risk to patients based on the doctor’s record or other discoverable facts, it is unclear whether the agency can be held directly liable by the injured patient.
But to the extent that the hospital relied on the due diligence of the agency in confirming the doctor’s credentials and background, it is possible that the hospital could seek indemnification from the agency if the agency’s negligence caused the hospital to incur liability for the doctor’s malpractice.
Talk to an Experienced Medical Malpractice Attorney
Investigating who can be held responsible for a doctor’s malpractice requires a thorough analysis of the facts and circumstances surrounding the doctor’s acts and the relationship with the hospital and others involved in providing patient care. An experienced Michigan medical malpractice attorney will be well-positioned to discover those facts and hold all responsible parties accountable for their negligence.
When patients suffer because doctors, hospitals or others breach the standard of care, the attorneys in Sommers Schwartz’s Medical Malpractice Litigation Group are ready to hold them accountable. Our seasoned team of lawyers, nurses, and medical experts will investigate your claim and determine the best course of action to obtain the best possible outcome.
Please contact us today for a free consultation to review your case.