VICARIOUS LIABILITY

Description

When are physicians vicariously liable for damages arising from acts or omissions made by a midwife? The growth in midwifery-led models of team-based care necessitates all stakeholders have a clear understanding of vicarious liability. This often-misunderstood legal principle is commonly asserted as a barrier to establishing physician/midwife collaborative relationships. Vicarious liability is a legal principle that makes one liable for the wrongdoings of another who is acting on their behalf. Most often this form of liability arises where employers are held liable for damages done to others by an employee. Analysis from an updated and comprehensive caselaw review shows few cases involving midwives and vicarious liability. This finding is consistent with prior research by these authors in 2007 and serves as validation that physician/midwife practice relationships have not created an increase in liabilities. Additionally, research continues to confirm that a collaborative practice agreement does not create any unique vicarious liability risk and that the collaborative practice relationship is different from an employer/employee relationship. State-regulated collaborative practice agreements for midwives, whether licensed in a state that acknowledges full practice authority for midwives or not, do not create the required employment/agency relationship needed to establish vicarious liability. This article offers important recommendations for midwives and those with whom they collaborate, including how both parties can best describe their relationship in contractual arrangements. Without an employment or agency relationship, vicarious liability simply does not apply.