As a healthcare professional, you will be used to the idea that you can be held liable for a personal failure to use reasonable care and skill, but you may be less aware of your exposure to liability for the failures of others.
Vicarious liability means that a person can be held legally responsible for the acts and omissions of another.
This liability arises in relation to the negligent acts of your employees. If you employ other people, either directly or as a member of a partnership, you will be exposed to vicarious liability, because you are considered to be responsible for their acts and omissions.
Separately, you can also be held liable for your partners' errors: in law, partners are 'jointly and severally liable' for each other's acts.
In some circumstances, you may be liable for errors made by independent contractors, such as locums, through whom you provide services.
This situation could arise because the contractor is judged to be equivalent to an employee, or because you have failed in your responsibility to check their credentials and competencies, or due to your own contractual liability for the patient.
Monitoring the indemnity of all employees with a degree of clinical autonomy is crucial in managing risk. Ensure that all who work in your practice have adequate cover in place for potential liabilities and that their indemnity does not lapse.
Do not assume staff are covered under your own indemnity arrangements; make sure that those requiring it have their own indemnity and check the indemnity of all those working in your practice, including locums and temporary staff, to ensure that the provisions of the indemnity are adequate and appropriate and do not contain significant exclusions. It is also essential to review these arrangements, at the least on an annual basis.
Alternatively, you may arrange indemnity on their behalf through, for example, a practice package scheme or individually.
Common cases the Medical Protection Society has dealt with where GPs have been held vicariously liable for staff errors:
As an employer, the onus is on you to ensure any employee who is performing clinical work is adequately trained, up-to-date and competent to do so, because legally you are held vicariously liable for their actions.
Even long-serving staff should not be overlooked with regard to their training, which should be continuing and should include a degree of appraisal/assessment of competence.
GPs should ensure that safeguards are in place, such as encouraging staff to raise concerns or seek a second opinion if they encounter any concerns during a consultation.
Nurses employed in the practice should have their own indemnity, either arranged by themselves (and acceptable to you) or provided by you as the employer. It is highly unlikely that your own personal indemnity arrangements will automatically apply to other clinical staff with autonomy in decision-making and if there is any doubt, you should ask your indemnifier. To manage the vicarious liability risk, employers should check that all staff (not just new recruits) are appropriately trained, up-to-date and competent to carry out their tasks.
It is vital to have processes ready to ensure that all healthcare professionals have their own indemnity arrangements in place whenever they are working in the practice - even when this is at short notice.
|Case Study: ear syringing|
Sally, a 30-year-old singer, visited her surgery complaining of earache. She was not seen by a GP, but by Nurse M, a nurse practitioner.
Nurse M identified wax in the ears, so decided to carry out ear syringing. When Nurse M was syringing Sally's right ear, Sally complained of feeling pain. Nurse M reassured her that this was normal. She did not look in the ear again or get a second opinion.
Sally did not reattend for several months. She was encouraged to make an appointment by her bandmates who noticed a distinct deterioration in her hearing. Sally noted that her hearing loss was present in the same ear in which she felt pain when it was syringed.
Dr F examined her ear and became concerned about ear trauma, so made an ENT referral. This confirmed an old perforation of the eardrum on the right side, which had caused hearing loss likely to be permanent.
Sally launched a claim against Nurse M who had retired and moved abroad. On review, Nurse M's notes contained only limited information on what Sally had consented to. There was no documentation of what specific complications Nurse M had discussed with Sally, of the pain Sally had experienced, or that Nurse M had checked the eardrums afterwards.
Nurse M's notes were not comprehensive enough to defend the claim so the case was settled for a moderate amount. Nurse M had not left a forwarding address, so vicarious liability for the claim fell on Dr F as her employer because the claim arose from her employment.
- Dr Barclay is deputy medical director and Sara Williams is a writer and editor at the Medical Protection Society, www.medicalprotection.org/uk
|CPD IMPACT: EARN MORE CREDITS|
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