Is a hospital vicariously liable for an act of negligence committed by its doctors, whether part time or full time? Yes, and the following case is one such example of this law.
Shyamlee had approached Lilavati hospital with complain of post-menopause bleeding where the doctor performed Dilation & Curettage (D&C). During the procedure, the doctor removed right ureter which caused severe complications. Eventually her right kidney was removed at another hospital.
The patient sued Lilavati hospital and its doctor alleging gross negligence on their part.
The hospital shrugged any responsibility and stated in defence that the doctor was visiting on a part time basis and hence they cannot be held accountable.
The doctor in defence stated that the ureter was removed ‘by mistake’ – it was an accident and accidents were ‘not actionable’. It was further stated that Percutaneous Nephrostomy (PCN) was performed as soon as it was discovered that the ureter was removed by mistake.
It was also stated by the doctor, perhaps as tit-for-tat, that he was employed by the hospital and hence the hospital was vicariously liable for all its staff – part time or full time.
The Commission seemed to be in no mood for the bickering as the law is crystal clear on vicarious liability. However, before addressing the browbeating, it was observed that removal of ureter could not be accepted as a mistake. Citing medical literature the Commission observed that while injury to ureter is a common complication, its removal is not – it was a clear case of negligence.
The Commission further observed that although further damage was prevented by performing PCN, there was no doubt that it had to be undertaken due to doctor’s lack of expertise and skill.
Addressing the issue of vicarious liability, the Commission stated hospitals are liable for the acts of its staff, whether part time or full time. Hence, both, the doctor and Lilavati hospital were held negligent and order to jointly pay compensation to the patient.
Source: Order pronounced by National Consumer Disputes Redressal Commission, New Delhi on 2nd May, 2019.