Vicarious liability of the Hospitals

Negligence is a violation of a legitimate treatment obligation. In cases where the obligation is

violated, the patient has the right to file a case for negligence. Medical professionals, including
doctors, nurses, emergency medical technicians and other healthcare providers, are trained to
provide quality care and are accountable for the good physical condition and overall well-being
of their patients. However, they sometimes fail to fulfil their patient-related responsibilities by
failing to provide them with adequate care and protection, performing malicious acts, or
providing low-quality care, resulting in extensive complications such as personal injury and
sometimes even death.

Hospitals, particularly in India, are held liable for the individual or vicarious services provided.
Negligence charges are imposed and the case is dealt in civil or consumer courts. Health
services are provided under the amendment of the Consumer Protection Act, 1986, in which
insurance is offered to the claimant within 90-150 days due to service deficiency. Cases not
covered by the “Consumer Protection Act, 1986” (e.g. cases involving provision of free
treatment in non-governmental or government hospitals, health centres etc.) are brought to trial
by criminal courts where a charge is given to the health care provider under “Section 304-A
IPC 4” for the damages that are caused resulting in reckless and negligent acts.

Hospital liability can be divided into two forms in cases of medical negligence: direct liability
and vicarious liability. Direct liability applies to the hospital's insufficiency in delivering a safe
and satisfactory setting. Vicarious liability applies to an employer's liability for their workers '
delinquent actions. It is basically the responsibility of 'X' for the negligent act of 'Y' against 'Z'
when 'X' itself had no part in the behaviour of ‘Y's'. In other words, an employer is not only
responsible for his own omission and commission acts, but also for his employees negligent
acts, as long as the act happens during their employment. This obligation relates to the
'respondeat superior' concept, which means 'let the master reply'. There is, however, an
exception to the principle that exists and is known as the 'borrowed servant doctrine', which
states that the employer is not accountable for any of its employee’s negligence when the
employee works under the guidance of another senior employee. For example, when a surgeon
employed in hospital “A” has to perform a surgery in hospital “B”, the surgery being performed
in hospital “B” will be held responsible for the surgeon’s actions.
Transmission of infections including HIV, HBsAg, etc. can result in the hospital being charged
for such acts of negligence if the patient is infected during the course of hospitalization and
irresponsibility of the hospital management. A hospital can be held vicariously liable for the
negligence of fully qualified healthcare professionals on several grounds on various occasions
of errors like misdiagnosis, failing to report symptoms, not doing a follow-up with a patient,
improper monitoring of a patient, surgical mistakes, medication errors including failing to
administer, giving the wrong dosage and mistimed administration.

Most High Court decisions have resulted in hospitals being vicariously liable for the patient’s
damage caused by their staff's negligence. In one of the “Madras High Court's” judgments in
“Aparna Dutta v. Apollo Hospitals Enterprises Ltd. [2002 ACJ 954 (Mad. HC)]”, it was
concluded that the hospital offered the medical services. The terms and conditions for
employing doctors and surgeons are created by the same body, however due to this reason the
liability of the hospital cannot be overlooked. It is the hospital’s responsibility to provide
medical services and, in the event of insufficient service or negligence with regard to surgery
in the event of failure to provide quality care, the hospital must be accountable and should not
escape the liability in case of absence of master-servant relationship among the hospital and
surgeon who performed the surgery. In another “Kerala High Court” judgment in “Joseph
Pappachan v. Dr. George Moonjerly [1994(1) KLJ 782 (Ker. HC)]”, it was reported that
persons operating the hospital are in law are also accountable and liable as the humble
physician. If the staff are reckless and unprofessional in providing the treatment, then they are
just as accountable for the negligence as any other individual who assigns others to do their
duties.

At the “National Consumer Redressal Commission” judgment in the case; “Smt. Rekha Gupta
v. Trust & Anr at the Bombay Hospital. 2003 (2) CPJ 160 (NCDRC)]”, where a consultant
doctor was held negligent. The Commission stated that, regardless of the rules laid down for
them, the hospital must owe up for the behaviour of its employees. By stating that it only
provides infrastructural facilities, nursing services, supporting staff and technicians, and does
not conduct any operation, it cannot escape liability. Regardless of the outcome of the case, for
such reasons, the hospital is unable to disown its responsibility.

The hospital management is liable for the negligent acts occurring at any level of the
organisation. Negligence occurring during the operation by a consultant surgeon in a hospital
wherein he was not employed is held liable since it offers medical services.