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Medical malpractice cases may seem simple, but they are anything but. For instance, if you have a medical malpractice claim, do you know who exactly you should sue?

You may automatically think that the doctor responsible for the malpractice is directly legally responsible for your injuries, but this is not necessarily the case. It is, in fact, possible for the doctor’s employer to be responsible for your injuries, depending on the situation. According to Findlaw, this is vicarious liability and means that in certain circumstances you may be able to sue the hospital.

When does vicarious liability apply?

Vicarious liability exists under the tenant of “respondeat superior,” which is Latin for “let the master answer.” Essentially, this means that an employer may be legally responsible for the misconduct of the employees. However, in order for this to apply, the act of malpractice must have occurred during the “scope of employment.”

For this to hold true, the employee must have been on the clock at the time of the malpractice, the injury must be a result of the employee doing an action the employer hired him or her for, and the employer must have somehow benefited from the malpractice.

Generally speaking, a surgeon conducting a surgery falls under the tenets of “respondeat superior.” However, if a surgeon is working “off-the-clock,” the court will not hold the hospital liable.

Are there any defenses against this?

Many hospitals are successful proving that the employee was not acting within the scope of employment. For instance, it is possible that the surgeon is an independent contractor and not an employee. If this is the case, then “respondeat superior” does not apply.