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Practice areas

Liability

Liability of Hospitals and Health Maintenance Organizations (HMO)

liabilityofhospitalsHospitals are generally liable for any actions of their employees that are undertaken within the scope of their employment. For example, a hospital is responsible for the actions of a nurse employed by the hospital in the course of providing care in the hospital.

Questions regarding the liability of hospitals frequently arise when they involve the actions of a doctor who is not an employee of the hospital:

  • a doctor may not be on staff, but only have privileges at the hospital
  • a doctor may be on the staff of the hospital but bill patients directly for services rendered

Traditionally, these doctors are considered independent contractors rather than employees, and the hospital may not be automatically liable for their negligence. Exceptions to this general rule have been recognized in situations where the patient has every reason to believe that the doctor is employed by the hospital. For example, hospitals have been held liable for the actions of doctors working in their emergency room even if they were not employees, as well as for anesthesiologists and radiologists.

Ever-changing federal law complicates the liability of a Health Maintenance Organization (HMO) for the medical malpractice negligence of one of its doctors. The federal Employment Retirement Income Security Act of 1974 (ERISA) has been held by some courts to preempt state law medical negligence claims involving HMOs because HMOs are a form of employee benefit plan. If a particular claim is preempted by ERISA, the HMO cannot be held liable under state law for the doctor’s medical malpractice negligence. This means that the patient can bring a lawsuit only against the doctor, not the HMO. Some contract claims against an HMO may be precluded by ERISA as well. Judicial decisions can be expected to define the law in this area in the next several years. At Clark and Martino, our medical malpractice attorneys have the most up-to-date information on the changing laws, and we can advise you on the particulars of your situation in Tampa.