Professional malpractice liability often receives a great deal of attention, and is a

major concern in the health care industry. When the person is a professional, more than

one type of liability may come into play. Much of the law defining liability for the acts of a

professional is “common law,” or law established by court cases rather than by statutes.

In modern America, the word “liability” has become completely associated with the word

“insurance.” This is particularly true in the health and human service care fields.

A professional may be subject to liability for acts that cause injury to a third party.

The theory for imposing this type of liability is called the doctrine of respondent superior

(“let the master answer”). The central issue in cases involving respondent superior

liability is often whether the professional acted outside the scope of his or her

profession. In the human service industry, the doctrine of respondent superior is often

invoked when patients are injured, in an institutional setting. “Chain of command”

issues, as well as the status of various individuals, often come into play.

Employers of human service workers will be held liable only for unintentional acts

of an employee. However, many courts will also hold employers liable for intentional

acts, such as assault or rape, if certain tests are met. For example, in some states an

employer will be liable for an employee’s intentional act if:

• The intentional act was within the scope of employment; and

• The act was calculated to facilitate of promote the employer’s business.

The fact that an employee’s act was willful and malicious does not always remove it

from the scope of employment. The issue of liability for intentional acts has also been

raised in the context of psychotherapists who sexually abuse their patients. Depending

Malpractice 3

on what court, an employer may not be held liable...

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