THE MYTH OF VICARIOUS LIABILITY - IMPACT ON BARRIERS TO NURSE-MIDWIFERY PRACTICE

Lack of understanding of the legal concept of vicarious liability may underlie certain barriers to nurse-midwifery practice. Malpractice ins urance surcharges, denial or restrictive limitation of clinical privil eges, and physician ''supervision'' requirements may all be premised, at least in part, upon an assumption that physicians who work with, an d hospitals that grant clinical privileges to, nurse-midwives will aut omatically be liable for any negligent actions or omissions of CNMs. T his article examines the basis for such assumptions and, based upon re search into the current case law on this subject, concludes that popul ar assumptions regarding physician/CNM or hospital/CNM vicarious liabi lity are unfounded. According to the author's research, no reported ca ses exist to support that assumption. Vicarious liability arises from the relationship between two parties and is imposed solely on the basi s of the relationship. An employer is almost always vicariously liable for the negligent actions or omissions of his employee. If a nurse-mi dwife is the bona fide employee of a hospital or physician, the latter will most likely be subject to vicarious liability. Absent of any emp loyment relationship, however, such liability will not necessarily be imposed. Rather, the result will vary depending upon the facts of each case, and each professional's relative degree of fault would be deter mined upon the basis of his or her own actions. Hospital liability for nonemployee nurse-midwives who hold clinical privileges should be no different from hospital liability for physician members of its medical staff-that is, in most cases the hospital will not be vicariously lia ble for the negligence of its nonemployee staff, but will be directly liable for its own negligence if it failed to credential or monitor th e performance of its staff members properly. A malpractice surcharge c ase, and the insurance principles and data that may be derived from th at case, are also discussed.