Person

Each adult individual of sound mind is liable for his or her own actions. We may also be liable for the acts or omissions of others. If we employ another, we may be directly or vicariously liable. We may be directly liable if we employ someone who is unqualified or unsuitable for the post, and we knew or ought to have known this, for example by checking qualifications or references. We may be vicariously liable for an employee's acts or omissions in the course of his or her employment. This includes a surprising range of actions, as well as negligence if it occurs in the course of one's employment. The range may include actions specifically forbidden by the contract of employment and by company regulations. This judge-made law is probably policy based; if employers are liable, they must insure against the risk, and this ensures compensation for victims of such negligence.

What of trainees? Is the senior liable for the actions of the junior? Yes, if the junior is actually employed by the senior, who is vicariously liable. Not necessarily, if both are employed by another, such as a hospital, health authority, or trust. This will turn on the facts of the case. If a junior acts on the direct instructions of the senior, or appropriately follows policy guidelines set up by the senior, the senior may then be liable. Otherwise the junior may be personally liable (while the employer will still be vicariously liable).

Vicarious liability of health employers in the United Kingdom has recently been revived under the National Health Service indemnity scheme. This is merely the result of abandoning the agreement that doctors would insure themselves against clinical liability, and that employers would not have to be liable for them. The principal reason for abandonment of this arrangement was that the cost of such insurance became very high, resultant on increased litigation, and this cost was reimbursed by employers; it became cheaper for the employer to be liable. (At least one United Kingdom health authority has tried to exclude liability for negligence in a contract of employment. For many reasons, this attempt is unlikely to succeed.)

In the private sector in the United Kingdom, the doctor is not an employee but is a subcontractor or is independent. This would also apply in many common law jurisdictions, such as Australia, New Zealand, Canada, and most of the United States. The doctor will be liable for his or her own actions and must insure against negligence accordingly. The hospital is not vicariously liable, although it may have a direct responsibility to insure, through accreditation procedures, that only properly qualified practitioners are allowed to practice there.

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