Vicarious Liability: Having Midwife Business and Doctor Separate
Vicarious liability is a common term used when a physician is approached to have a written or verbal collaboration with a midwife. Do you really understand what it means and when it applies? Vicarious liability is attachment of responsibility to a person for harm or damages caused by another person in either a negligence lawsuit or criminal prosecution. If there is any relationship present with a midwife, many doctors think they are indirectly at risk of their care. Especially when a written agreement is in place, many doctors fear any association with a midwife. This is a great opportunity for education to medical community of what risks is TRULY present.
If a memorandum of understanding or collaborative agreement is in place between a doctor or midwife, it doesn’t create increased risk for doctor involved. If consultation with doctor occurs and recommendations are followed, then liability risk if present for midwife and doctor. Whether a piece of paperwork is present is irrelevant at this point. It is similar to if a Family Practice Doctor refers to a Specialist in area and lawsuit occurs. All providers involved in the care of the patient are at risk of lawsuit.
If a written collaboration is present (whether required by state regulation, health insurance credentialing requirement, or professional request to help communicate better with medical community), doesn’t mean both are liability for care if doctor was never involved in midwife’s patients care. An example of this was birth center in Michigan about ten years ago was involved in a lawsuit for poor outcome. The written collaborating physician was never consulted about patient. The lawyers attempted to link her into the lawsuit since there was a written collaboration in place. No vicarious liability was allowed and physician never was pulled into the lawsuit. The midwives involved in the patients care were only sued.
Vicarious liability is completely different if doctor hires a midwife. Even if the doctor owner of the practice isn’t involved in the care of the midwife’s patient, the doctor is liability due to employer/employee relationship. If two separate business entities sign a collaborative arrangement, they are both responsible for their own care. If consultation and co-mingling of care occurs on a patient, then a potential of both being named in a lawsuit is present. It had nothing to do with written or non-written collaboration arrangement.
Advocate for your practice and help demystify fears about what vicarious liability is and really looks like. Show confidence in your knowledge and stress the physician consult his/her legal team before creating any relationship. I tend to refer physicians to my legal consults, since many lawyers give advice on conservative thinking versus true law suit cases that have happened in the past.
Once I simply explain with confidence what protection a physician has from my care, there is usually little future concerns from the provider. I like to give potential referrals and new relationships past physician relationship recommendations to talk with. It really helps when trust can be created from my past professionalism. It is like a resume needed to get a job. It is an opportunity for your past professional relationships to really shine how amazing you are!