0:00

There are two concepts

0:02

that you really should keep in mind, and they are all apart.

0:06

I want you to keep, when you're thinking about these things,

0:08

keep going back to the idea that the law's trying

0:11

to define the fair relationship

0:14

between the parties and the patient.

0:16

And that the facts are going to control two concepts.

0:21

A borrowed servant. What's a borrowed servant?

0:24

If you're an attending radiologist

0:26

or if you're an independent contracting radiologist

0:29

and you're using the hospital's, residents, technicians,

0:34

nurses, staff, other staff,

0:38

then you are borrowing them.

0:39

You, if you have control, it's always looking for control.

0:43

If you have supervisory control, well, you may say,

0:48

well, I don't really have control over these people.

0:52

Well, that's, that's a concept that you have

0:54

to look to the facts for.

0:56

Are you one who tells the technician what to do?

1:01

Well, that's controlled in any of these.

1:03

The residents, if you're giving a resident a job to do,

1:06

they don't work for you.

1:08

They may not even work for the hospital,

1:10

but are you borrowing them?

1:12

You are borrowing them in that circumstance many times

1:14

with a resident, whether a resident's doing a read for you

1:17

or doing a follow up

1:18

or procedure for you, they are your borrowed servant

1:22

and you are vicariously liable for their acts of negligence.

1:27

That is looked upon from the perspective of the institution

1:31

and the team and how they work together

1:33

and what they're supposed to do.

1:35

What is the supervisory capacity?

1:37

What is the management of that?

1:39

And that's really fact-based.

1:41

And, and it's different in every case.

1:42

And we'll, we'll take a look at a couple cases where, one,

1:46

it was not considered control

1:48

and one it was the apparent agency doctor is different.

1:52

That is looked upon from the perspective of the patient.

1:57

It's sort of normal for people in my business

2:00

to ask an attending

2:02

or an independent contractor, radiologist.

2:06

Um, doctor, when you, um, when you're in the hospital,

2:09

uh, do you wear a white coat?

2:12

The answer is yes. Yes I do.

2:14

And what does your white coat say on the, on the left side,

2:18

uh, of, of the coat?

2:19

Well, it says Mary Smith, MD Radiology.

2:25

That's not really putting you out

2:27

as a independent contractor, is it?

2:29

You don't have a group on it.

2:34

You have radiology.

2:36

Can a patient now, once again,

2:39

apparent authority is from the patient's perspective,

2:42

is it reasonable for a patient to believe

2:46

that the radiologist who's reading her films in the

2:50

hospital is part of the hospital?

2:53

Well, the answer is yes.

2:55

The difference would be say, let me give you an example of

2:58

A obstetrical case.

3:01

Woman comes in, has her prenatal obstetrical care, goes

3:05

to the OBS office a dozen times throughout her pregnancy,

3:10

and then that OB delivers the child something bad happens.

3:16

Is the OB under that circumstance part of the hospital?

3:21

Well, probably not. They probably are not

3:24

because it was a private patient.

3:27

You went to the HO office.

3:30

That's probably not, but what if the OB is the covering

3:35

OB during that time for the hospital,

3:38

then the hospital's involved.

3:40

What if the nurses did not notify the doctor

3:43

of a fetal monitor strip problem?

3:46

That's the hospital. It goes back to what we said

3:50

before, it's factory related.

3:52

What's fair here?

3:53

If the, if the physician was completely private,

3:57

handled the whole delivery,

3:59

and there was a problem with the delivery

4:01

that's on the OB and her group.

4:04

If it's something else, if the nurses were involved,

4:07

if the OB was covering several different women,

4:11

they probably are liable under,

4:14

they probably did have the control.

4:17

What is frequent in these cases

4:21

is from the plaintiff's lawyer's perspective, in any

4:25

of the cases that involving serious damages and,

4:28

and firms like, like mine, only take those cases

4:32

in those cases that take serious damages, we're looking

4:36

to make sure our client has

4:38

enough coverage if they are successful in the case,

4:43

and that coverage is always from attending.

4:46

We always look for attending.

4:47

We're looking for nursing

4:49

and we're looking for the institution.

4:51

Most of all, because the institutions will always have the

4:54

larger share of this, and it's an attempt.

4:57

Vicarious liability is an attempt

5:00

to fairly bring in each person in the team

5:04

to see whether they, they individually have liability

5:08

or they have a liability through a parent authority.

5:11

An independent contractor who is an apparent agent

5:15

of the hospital will, will hook in the hospital

5:18

for their vicarious liability and their coverage.