Vicarious liability is a tort that arises under common law doctrine in agency relationship whereby a superior person is responsible for failures of his or her subordinates. The doctrine of agency arises in several cases such as parent and child, principle and agent, teacher and student, or employer and employee. In this paper, employer and employee relationship is the main point of concern. In many organizations or corporations, the employer is responsible for negligent conduct of the employee. In other circumstances, an organization can engage in conduct deemed illegal such as in health care.
This results to a corporate criminal liability which is different from vicarious liability. The writer of the paper aims at distinguishing between corporate criminal liability and vicarious liability resulting from negligence of health care organizations employee. In this aspect, the major area of concern is to address legal elements of criminal versus negligent liability that arises because of employee conduct. A corporation is a legal person that can be sued and sue in its capacity its natural persons that is employees.
As a legal person, a corporation is liable for the acts and omissions of employees. In criminal law, the responsibility of a corporation for acts of its employees is known as criminal vicarious liability (Bloche Gregg, 2003). Corporate criminal liability is charging a corporation for criminal mistakes or offenses committed by directors, officers, employees or managers. A corporation is only liable for mistakes of its employees only if the workers were carrying on duties related to corporate affairs.
The basis for charging a corporation for mistakes of its employees is its independent legal personality. In the case of health care, the medical practitioners such as doctors, clinical officers or nurses can act in an illegal manner that subjects a clinic or hospital to legal charges. Some of the offenses committed by such officers are engaging in corruption, securing an illegal abortion or miss- use of public health centers facilities. Vicarious liability on the other hand, is a legal doctrine that assigns the principal strict responsibility for misconduct of the agent.
One major element of vicarious responsibility that differentiates it from corporate criminal liability is the concept of legal relationship between the negligent acts of a person that led to injury of another person (Sharpe Charles, 1999). Vicarious liability is also known as imputed negligence and includes a legal relationship between parent and child, husband and wife, employer and employee or owner of vehicle and driver. In the case of health care, an employer is legally liable for negligent act of medical practitioner. In this aspect, there exists a legal relationship between principle and agent.
The employer in health care such as public hospitals under the custody of government is liable for negligent acts of a doctor, nurse or clinical officer in his or her full capacity of employment. For instance, a doctor who secures an abortion while he or she is aware of the consequences such as death of patient makes the government through management to be answerable for such acts. One element of criminal liability in organization resulting from employee conduct is proof of legal artificial personality of a corporation (Beale Sara, 2007).
The existence of the corporation should be recognized by law as an artificial person that employs natural persons. A relationship should arise between the artificial person as an entity and natural persons as employees. On the other hand, negligent liability is proved through evaluation of certain elements such as in the case when an employee acts negligently knowing of the particular outcomes. The employee should act within his or her scope of employment for employer such as a corporation to be liable for negligent act. Apparent agency
Apparent agency is an area of commercial law that deals with contractual relationships in which the agent is authorized to carry on duties of the principal. The principal expressly or impliedly empowers the agent with the power to work on his or her behalf. It is a law that reconnects third parties with principal and legal concepts applied in this form of law are parallel to vicarious liability and strict liability. The principal is held liable for acts or omissions of the agent. The law of tort under the doctrine of agency that relates to employee versus independent contractor is a major area of concern in liability analysis.
An independent contractor is a person or business that performs services for another individual under implied or express agreement. In this agreement term, the employee has no right to control the means of performance by the independent contractor. The contractual agreement of this kind provides that a person who engages an independent contractor is not liable for acts and omissions of the contractor. In the context of liability analysis, a distinction arises between agents versus independent contactor in the aspect of tax liability.
The independent contractor is liable for payment of taxes until the contract is complete. Degree of control in this kind of agreement is minimal meaning that the independent contractor acts on its own. References Bloche Gregg, 2003, The Privatization of Healthcare Reform: Legal and Regulatory Perspectives, Oxford University Press. Sharpe Charles, 1999, Nursing Malpractice: Liability and Risk Management, Auburn House. Beale Sara, 2007, Is Corporate Criminal Liability Unique? American Criminal Law Review, Vol. 44.