CAMLAW: Complementary and Alternative Medicine Law Blog : Complementary, Alternative, & Integrative Medicine Law, Regulation, Ethics & Policy (Alternative and Complementary Medicine, Medical Spa Information, Holistic Health Attorney, and Legal Resources)

           Whereas direct liability refers to malpractice liability for one's own negligence, vicarious liability refers to liability for the negligent acts of others.  Vicarious liability is frequently overlooked by owners of various medical and other health care facilities.

            Within the integrative care center or medical spa, the Center itself (and its owners as well as medical director) can be vicariously liable for the negligent acts of other practitioners who work within the Center (even if these practitioners are independent contractors and not employees). Vicarious liability simply refers to the liability of A for B’s conduct, irrespective of A’s conduct. Liability flows up the chain from B to A.

            The only possible protection is to ensure that the malpractice liability insurance policy explicitly covers this potential source of liability. In addition, a strong credentialing and quality assurance program can help minimize the risk of liability exposure from practitioners.

            Negligent credentialing refers to malpractice liability for failing to exercise due care in hiring practitioners. This creates a bit of a dilemma. If the Center simply is a pass-through for patient visits to practitioners, then the Center need not establish a scheme to credential the Practitioners. However, the downside is that the Center loses the ability to have quality assurance controls over those the Center lets into its network, and accordingly has liability exposure.

            On the other hand, once the Center undertakes a credentialing scheme, it opens itself up to potential liability for negligent credentialing and/or negligent referrals. Further, credentialing is a significant undertaking, because it requires developing at least some objective standards by which a candidate is allowed or not, standards and procedures upon which a practitioner may be removed, some minimal due process procedures for which an aggrieved practitioner can take issue with a decision, and some potential for claims from practitioners who have been denied or are removed.

            Note that the Center could explicitly disclaim any credentialing effort. The marketing materials could state that each practitioner practices independently of the other and has no responsibility for the other’s care or quality of care. This could also include a statement that the Center makes no claims regarding products or services; has not evaluated the skills and abilities of the practitioners; and makes no recommendation or endorsement of them. In such case, it is vital that marketing materials not overreach and imply that practitioners are screened and certified, as consumer perception controls. This is not to say that under a directory structure the Center cannot require and verify, for example, that a Practitioner holds the license claimed. An example of this is the Yellow Pages, in which certain categories are preceded by stating “Listed parties in this section may require a license.”

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