Public Health Law Map - Beta 5 - Medical and Public Health Law Site

important if the employee injures another person. The injured person may recover
from the employer only if the employee’s actions were within the scope of
employment. Disputes about scope of employment arise from actions, such as
driving to a work site, that are not under employer supervision, or intentional actions,
such as drunken driving or sexual assaults.
5. Intentional Acts
Intentional torts are usually not within the course and scope of employment.
Employers may be vicariously liable for the intentional torts of their employees only
if the employer tolerated the activities or did not properly screen the employees for
dangerous tendencies. For example, assume a physician hires a physician’s assistant
who subsequently sexually assaults a patient. If the employee has no history of
assaulting patients or other persons and the physician has not had any notice of
problems, the physician will not be liable for the assault. If, however, the employee
had assaulted persons in the past and the physician was negligent in not discovering
this, the physician could be liable under the theory of negligent hiring. The physician
could be liable for negligent retention if there were complaints about the behavior of
the physician’s assistant and the physician failed to act on them.
Physicians must have employment criteria designed to detect employees who are a
potential hazard. They must take quick action if an employee is suspected of
intentionally harming patients. Intentional injuries must never be covered up. Cover-
ups can result in large financial losses through the assessment of punitive damages,
and they undermine public confidence in the physician or medical institution. In one
example, which occurred in a San Antonio teaching hospital, [Federal investigators
report on clusters of infant deaths. July 25, 1985; New York Times. Investigators near
end of inquiry into deaths of infants at hospital. April 11, 1984; New York Times] a
pediatric ICU nurse became so involved in the thrill of resuscitating patients that she
began poisoning children with a muscle relaxant to create resuscitation opportunities,
not all of which were successful. Rather than investigating the unexpected increase in
deaths, the hospital and physician committees covered up the evidence pointing to
murder and offered the nurse a good recommendation if she would resign. She
continued to poison children in her subsequent job but was found out and convicted
of murder. Through its participation in the cover-up, the hospital and physicians
increased their liability for the nurse’s actions while she was in their employ and may
have assumed liability for the murders she committed later because the job was
obtained with their false recommendation. They may have also committed crimes
themselves by not reporting suspicious deaths and injuries under both the child abuse
reporting laws and murder laws.
6. Hospital Employees
Physicians’ liability for the actions of hospital employees is problematic because of
the persistence of the borrowed-servant and captain-of-the- ship doctrines. These
doctrines hold that all the actions of hospital employees are attributable to the
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