Damned If You Do, Damned If You Don't: Hospitals' Liability for Physicians' Malpractice

This article explores some of the problems hospitals face in avoiding liability for the negligence of their independent contractors. After a critical analysis of the theories underlying imposition of liability, we discuss the sometimes conflicting public policy considerations respecting the mandates given to the modern hospital as these mandates affect hospitals' liability. I. Introduction II. Emergence of the Problem III. Theories of Liability ... A. Respondeat Superior ... B. Apparent Agency and Estoppel to Deny Agency ... C. Corporate Negligence IV. Duty of the Hospital ... A. General Considerations ... B. State Licensing ... C. Protection against Discovery ... 1. Federal Protection ... 2. Shielding Statutes V. Conclusion