Legal Terminology in Midwifery Malpractice Litigation
There are numerous legal theories which pertain to the prosecution and defense of lawsuits involving nurse-midwives. Many of these theories may be familiar, but how they apply to CNM/CM practice may be new.
This “master” is legally responsible for any bad behavior of this “servant”.
Chewy
Legal Liability/Agency
The following legal theories may apply to nurse-midwives who are employed by hospitals, clinics, healthcare corporations, and private physicians. A hospital organization conducts business in conjunction with its CNM/CM employees in an agency relationship. The hospital is the Principle and the CNM/CM employee is the Agent. (In English common law, this relationship was referred to as Master/Servant, which might be appreciated by CNMs working in hospital corporate environments). The CNM/CM-agent is authorized to provide care to patients on behalf of the hospital-principle in a “business relationship”. In this arrangement, the CNM employee provides care as a legal extension of the hospital, as if the hospital was actually providing the care and acting independently. In this legal relationship, the hospital can be held directly liable for any negligent conduct or torts the CNM commits while taking care of hospital patients.
In litigation, the civil case, or cause-of-action, will be professional midwifery negligence or wrongful death. Potential liability assigned to the hospital for the negligence of midwife employees may be: 1) Negligent hiring and supervision of the CNM. 2) Negligent retention of the CNM (meaning the continuation of CNM employment after known deficits or previous substandard care by the midwife). 3) Providing improper guidance or instruction to the CNM (only for hospital-employed CNMs).
Vicarious Liability:
This doctrine in tort law may impose responsibility on one individual for the liability of another in a physician-CNM/CM relationship. Physicians have long feared professional relationships with nurse-midwives due to vicarious liability. The animosity and fear may be familiar to nurse-midwives who have unsuccessfully attempted associations with obstetricians, and then faced major obstacles in providing nurse-midwifery care to their patients. In the past, decisions to employ nurse-midwives out-of-hospital has been within the discretion of willing physicians. In these arrangements, CNMs are able to practice, but have been forced to pay insurance surcharges or accept unfair limitations in coverage based on the risk of vicarious liability.
Currently, hospital corporations are purchasing private obstetrical practices and becoming the employers of previously private physicians. This has been somewhat advantageous for CNMs by removing some constraints on their ability to practice. Despite any misgivings of obstetricians and insurance companies, CNMs are being hired to practice in hospital settings. Finally, there is no concrete evidence that employing nurse-midwives increases the risk of legal liability .[1]
Respondeat Superior
Practicing outside the course and scope of being a dog.
Brayden Andersen
Respondeat superior is Latin for let the master answer and is a version of vicarious liability. This doctrine may apply in situations where an employer may be liable for the actions of the employee. When it can be shown that an employing doctor, hospital, or clinic actually controlled the CNM’s practice and professional behavior, they may be legally responsible for a CNM’s acts of negligence. In order to file a professional negligence lawsuit claiming respondeat superior, there must be factual evidence that the CNM was practicing within the course and scope of her employment. If the CNM negligently acts outside of what is expected in the employment contract, the negligent conduct may not support a legal claim against the employer under the doctrine. Both vicarious liability and respondeat superior are referred to as “imputed negligence”.[2]
Tim Doerfier
Independent Contractors
Legally, CNM/CM independent contractors are the opposite of CNM/CM agents. An employer is not vicariously liable for the torts of an independent contractor. A significant issue in a legal case claiming vicarious liability is determining whether the CNM was an employee-agent or an independent contractor. Courts have imposed a 3-prong test to the facts in a case in order to determine if the CNM is actually an employee: 1) the “master” (employer) must have agreed to the relationship 2) the master must receive some benefit from the relationship 3) the master must retain a right of control over the specific details of the work to be performed under the contract. Most often, the first two requirements are satisfied, leaving a majority of the analysis to the issue of control.
In an employer-employee relationship, the employer is given the absolute right to exercise complete control over every detail of the work performed, whether or not the employer has ever previously exercised control based on the facts of the case. A CNM independent contractor provides care in the course of her independent occupation, complying with the employer’s directives, only to the extent of the results of the outcomes of the work performed, not the way in which the work is accomplished. If a CNM/CM is being challenged as to whether or not she is an independent contractor, it has to be demonstrated that a physician (or hospital, clinic) had a legal right to exercise a high level of control over the “routine activities” of the CNM’s practice.
Collaborative Agreements in Legal Relationships
As previously mentioned, an important factor in determining the legal relationship between CNMs and physicians is the collaborative agreement. The language of the agreement should be carefully considered and drafted, especially in the area of control. While physicians and hospital administrations might envision a “hierarchical” relationship based on traditional employment models between nurses and doctors, most CNMs should envision a more “horizontal”, truly collaborative, relationship which focuses on the circumstances of patient referral and a description of the “consultant support” a physician has agreed to provide.
Some States regulating CNM/CM practice require restrictive, supervisory language recorded in their Statutes. Unfortunately, in these States, the relationship between physician and CNM is not truly collaborative. The physician is still “Master” and the CNM is “Servant”. The more restrictive the language in a collaborative agreement, the more the issue of determining employment status becomes complicated when examining whether a nurse-midwife is an employee or an independent contractor. Agreements which minimize the level of supervisory control over the nurse-midwife are beneficial to both parties. Each party is only liable for their own negligence.[3]
Captain of the Ship
Adam Bignell
Captain of the Ship is an outdated legal doctrine, traditionally applied to “surgeons-of-record” in legal cases involving negligence committed in an operating room. Initially, when medical malpractice was claimed against surgical nurses, first assistants, scrub technicians, or other operating room personnel, the “attending physician” was deemed directly responsible because he or she was assigned control of the actions of every “assistant” in the O.R. during a case.
Even though many jurisdictions no longer recognize this doctrine, some Courts in the United States still apply it. Fortunately, most jurisdictions have ruled that “Captain of the Ship represents an antiquated concept that no longer reflects the reality of what goes on in a modern operating room”. As a result of the specialized and independent roles of various individuals essential during a surgical procedure, the predominant argument is that the attending surgeon simply cannot have the right of actual control over everyone present.[4]
Manki Kim
1. Berkely Women’s Law Journal of Gender Law & Justice. Volume 2, Issue 1 p. 171-2
2. Jenkins, SM. The myth of vicarious liability. Impact on barriers to nurse-midwifery practice. Journal of Nurse-Midwifery. 1994. 1994 Mar-Apr.
Booth, JW. J Midwifery and Women’s Health. 2007. Mar-Apr.
3. Berkely Women’s Law Journal, supra note 1 at 155, 171, and 173.
4. McConnell v Williams, 361 Pa. 355; 65 A.2nd 243. Thomas v Raleigh General Hospital, 358 S.E. 2nd 222,225. (W.Va. 1987). Legal Briefs: Captain of the Ship. American Association of Nurse-Anesthetists; February 1993, www.ana.com. Restatement (Second) of Agency § 227 (1957).
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