|
|
VICARIOUS LIABILITY
Most Americans have some sense of personal responsibility. We are attuned to the concept that we reap what we sow, and that others reap what they sow. As professionals, in chiropractic practice, dealing with the public, we need to remember that there are occasions where we may reap what others have sown. We are accustomed to certain situations where we may bear responsibility for someone else's actions. If, for example, your delinquent 12 year old burns down the skating rink, he may bear some consequences for his actions, but you as a parent have some liability, and will probably pay for the damages. If your dog digs up the neighbor's pansies, you pay. These are cases of vicarious liability: responsibility for the acts of others.
In chiropractic practice, it is important that you understand the occasions when this ancient legal principle may apply to you. The most obvious application is to you and your employees. Your secretary, chiropractic assistant, x-ray technician and insurance clerk may all involve you in a legal action by performing negligently and causing harm to a patient. Your CA could lower the HiLo table on a patient's foot. Your secretary could gossip about a patient. The x-ray technician could overexpose a patient to radiation. The insurance clerk could sell names of patients to a multilevel marketing firm. The possibilities are endless, but the important concept here is that YOU as the employer are responsible for these actions, and may be sued for the injuries which occur. YOUR Jaguar and swimming pool are at stake.
The best protection in this case is in your hiring procedure. Checking references is critical to assure that there is not a pattern of negligent behavior. It is important to hire only mature, responsible employees with a sense of commitment to the job. It is worth an extra dollar or two an hour to get a good employee. It is advisable to use an employment contract and a written job description. It is important to have an employee manual that gives absolutely clear-cut policies and procedures. Cautions and prohibitions must be spelled out, and employees should sign and initial to demonstrate understanding.
As long as an employee is acting on your behalf, working under your supervision and oversight, you ultimately are responsible for their actions. If a rogue employee breaks policy and is in any way jeopardizing patient safety or satisfaction, it is important that you document the actions, and depending on the severity, sanction or dismiss the person.
If an employee, acting outside company policy, and contrary to directions from supervisors, causes harm to clients or patients, it is at least a mitigating circumstance that may lessen the degree of culpability assigned to the employer.
Partnerships
There is a very good reason not to establish a partnership as your method of doing business with the public. It is vicarious liability. Legally, in a partnership, the action of one partner binds all the partners. If one partner performs negligently and harms a patient, the partnership may be sued, and all the assets of all the partners are at risk. I know of few chiropractors who actually form a partnership as a legal entity and do business, since most of us do not wish to be responsible for the acts of another when we don't have to. However, unsuspecting chiropractors may wish to share an office and expenses with another, and if they are not careful they have an implied partnership, because they have acted like a partnership. You may ask, "Who decides that there is an implied partnership?" The courts do, after a suit is filed.
If you have an office sign in common, business cards in common, bank accounts in common, telephone listings in common, employees in common, appointment books in common, and a court will likely decide that you "are a partnership because you have acted like a partnership." Then, even though only one partner committed negligent acts, all partners are liable for any damages awarded. When a young, inexperienced chiropractor, with no assets,
associates with an older, experienced chiropractor, with lots of assets, the implications are easily discernable, especially to the malpractice attorney.
To avoid the partnership pitfalls, it is necessary to document your business relationship with another doctor. If you are merely sharing expenses, create a document that says so. State clearly in the document that you are not a partnership. Then don't act like a partnership! Have separate phone listings, business cards, letterhead, appointment book, bank accounts and magazine subscriptions. Each of you can contribute your share of expenses to a joint account, clearly labeled, EXPENSE ACCOUNT, and go on about your business. As long as the preponderance of evidence is that you are merely sharing expenses, chances are excellent that any move to have your arrangement declared a partnership will be unsuccessful.
Associateship Arrangements
It is a fairly common occurrence for a recent graduate chiropractor to work in the office of an established doctor for a salary, a percentage, or a combination. In this case, there is no denying that the relationship is one of employer/
employee. If the new doctor sees the old doctor's patients, is in any way supervised, carries out instructions of the old doctor and works hours set by the old doctor, it is definitely an employer/employee situation. If the new doctor is starting a new practice in the old doctor's office, brings his/her own equipment, works his/her own hours, and is not under supervision, there may an opportunity to treat the arrangement as an independent contractor. Whether employee or independent contractor is a taxation issue to be battled out with the IRS, but from a liability standpoint, the two parties, in order to protect themselves, absolutely need to have a written agreement. This agreement will need to state the terms of the relationship, and the responsibilities of each party. Both parties need to agree to maintain malpractice insurance; and for internal tranquility, need to agree on how the arrangement will break up.
A competent attorney who deals with business entities will be able to help you set up your business to assure minimal intrusion by third parties wishing to share your assets. He/she will also be able to help you draw up employment agreements, associateship agreements with all the necessary non-compete clauses, and non-solicitation clauses. Then, you can practice chiropractic without worrying about being responsible for the acts of others. But don't forget about your 12 year-old and your dog.
Discuss
this article in the forum
Looking
for previous articles? Try the archives.
|
|
|
