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Medical Malpractice Defense: Healthcare Liability

Healthcare companies and individuals expose themselves to a substantial amount of liability by simply opening their doors or doing their jobs. Even the best healthcare professionals can act negligently and commit medical malpractice. If they do, both they and their employer can be sued and, if the victim or plaintiff prevails, made to pay what can be huge sums in compensation.

Lynette Byrd
Attorney Lynette Byrd
Healthcare Liability Medical Malpractice Defense Team Lead
Former DOJ Attorney envelope iconContact Lynette
Nick Oberheiden
Attorney Nick Oberheiden
Healthcare Liability Medical Malpractice Defense Team Lead envelope iconContact Nick
Kevin M. Sheridan
Kevin M. Sheridan
Healthcare Liability Medical Malpractice Defense Consultant
Former FBI Special Agent
Wade McFaul
Wade McFaul
Healthcare Liability Medical Malpractice Defense Consultant
Former HHS-OIG Assistant Special Agent-in-Charge

Many people and entities think that all they can do about this is to pay for medical malpractice insurance. However, that is not the case. Both healthcare companies and medical professionals can take certain steps to limit their exposure to liability, reduce the odds that they commit malpractice, or put themselves in the strongest position possible in the event that they do face litigation for a medical malpractice claim.

The medical malpractice defense lawyers at the national law firm Oberheiden P.C., as well as the firm’s healthcare compliance team, have helped numerous healthcare clients through the important but often overlooked process of medical malpractice cases.

Why Just Having Medical Malpractice Insurance Is Not Enough

While many states do not require healthcare professionals to carry medical malpractice insurance, lots of healthcare professionals – particularly doctors and surgeons – as well as the companies that employ them choose to carry it anyway. The source of funding that the insurance company provides serves as a very important shield for the individual’s personal assets or the company’s business account. Without the insurance coverage, those assets would be used to pay for all of a successful medical malpractice claim settlement or verdict.

There are three big reasons why healthcare providers and professionals should take additional steps to protect themselves:

  1. Measures that reduce the odds of getting sued for medical malpractice can be used to secure a lower insurance premium
  2. Compliance measures can reduce the amounts of a medical malpractice verdict or settlement, lowering the odds that the amount will be higher than the insurance policy’s limits
  3. The legal defense that the insurance company provides will have the insurance company’s interests at heart, not your own

This last part is very important to remember. In certain circumstances, which tend to crop up when the malpractice lawsuit demands more compensation than the insurance policy provides, leaving a medical professional exposed to liability, the medical malpractice defense attorney provided by the insurance company would have a conflict of interest. In many of these cases, they may act in ways that hurt the interests of the healthcare provider without their knowledge.

Compliance Steps that Healthcare Companies Can Take to Avoid Liability

Healthcare companies can take several steps to minimize the liability that they can face in the event that one of their workers does something negligent on the job and hurts someone, and ends up facing medical malpractice allegations. Three of the most common are:

  1. Hiring independent contractors rather than employees
  2. Create and strictly enforce rules that reduce the odds of malpractice happening at your facility
  3. Thoroughly vetting all of your job applicants

Independent Contractors Versus Employees

One of the most popular ways that hospitals and other healthcare facilities have adopted to insulate themselves from liability for medical malpractice is to hire independent contractors rather than employees whenever possible.

Under the legal doctrine of respondeat superior, employers are vicariously liable for the negligence of their employees, so long as they are acting within the scope of their employment. Employees, after all, act on behalf of their employer. With the benefits that they provide come the obligation to step up when they make a mistake.

Independent contractors, however, are legally distinct from the company that hires them. So long as the employment relationship is one of a bona fide independent contractor, and not as an employee masquerading as an independent contractor, vicarious liability will not pass through the worker and to the entity.

Workplace Rules to Reduce Incidents of Malpractice

Healthcare providers also benefit by reducing the likelihood that malpractice happens at their facility. While mistakes will always happen, companies can do what they can to reduce them by creating workplace rules that make them less likely. A few examples are:

  • Recordkeeping policies that reduce the odds of patient information or lab test results getting mixed up or lost
  • Lowering the maximum number of hours that workers can be on the clock in a row
  • Providing employee training that surpasses the minimum required by law

Of course, these rules have to be strictly enforced to ensure workers actually follow them.

Avoid Negligent Hiring Allegations

One way that medical malpractice plaintiffs can hold healthcare companies liable without using vicarious liability is through a claim of negligent hiring.

A good way to understand how this works is to look at ridesharing companies like Uber. They use independent contractors as drivers. However, Uber’s poor vetting policies meant that some of their drivers had serious criminal records. When those drivers assaulted their riders, the victims claimed that Uber was liable because it put them in a dangerous position through its negligent hiring.

The same argument can be used against healthcare providers who hire professionals who have a history of committing medical malpractice, even if the company only takes them on as an independent contractor.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden



Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney


Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

What Individual Healthcare Professionals Can Do to Reduce the Odds of Committing Malpractice

Individual healthcare professionals have fewer options for reducing their odds of committing medical malpractice, aside from maintaining vigilance while on the job. Three things that they can do, though, are to:

  1. Consider the potential for malpractice when providing patient care
  2. Avoid long shifts or reduce your work hours to avoid burnout
  3. Make sure you are covered either by insurance or by your employer

Consider Malpractice Implications

One of the most important ways to reduce the odds of committing malpractice and avoiding the liability that would come with it is to keep it in mind when prescribing care to patients. Many instances of malpractice are decisions that even the professional looks back on and recognizes as a bad move.

This is particularly true when providing care that is in the heat of the moment, like in an emergency room, or that is untested, unproven, risky, or outside your field of expertise. Discussing the situation with your provider’s lawyer before doing it, if possible, may be a good idea. Another would be to explain the risks to the patient and get their informed consent first.

Reduce Work Hours

Studies have shown that a big source of medical malpractice is physician burnout, and that physician burnout is strongly correlated with long work hours.

You can reduce the likelihood that you commit medical malpractice by taking whatever self-care measures you need to take in order to avoid burnout, but there are also only so many hours in the day for this. The best way is to make sure that your work hours are not so high that they become a burden.

If you are employed by a healthcare company, it can be helpful to talk to them about how important it for the both of you to avoid malpractice allegations. While it might not seem like it, your interests are aligned.

Make Sure You Have Coverage

One of the easiest, but also one of the most important things that individual practitioners can do is to ensure that they have some form of malpractice coverage. The last thing that you want to have happen is to get named in a medical malpractice lawsuit and think that your employer will defend against it, only to find that they are not required to do so and that the payout would come from your own bank account.

Frequently Asked Questions About Oberheiden P.C.’s Legal Services and Medical Malpractice Issues

How Costly Can Medical Malpractice Claims Be?

It is not uncommon for medical malpractice lawsuits to demand tens of millions of dollars, particularly if they are wrongful death claims or allege catastrophic injuries to a child.

Of course, what the lawsuit demands and what the plaintiff actually deserves to recover are often completely different. The complaint that initiates the lawsuit is known for being extremely wishful. However, the amount of compensation that the law gives to the victim, if they can prove that they are entitled to it, can be substantial. At the very least, it will cover their:

  • Medical bills
  • Lost wages
  • Lost earning capacity due to any disabilities they now have

Additionally, victims can receive noneconomic damages for the following losses, though state law may limit how much they can recover:

  • Physical pain
  • Mental suffering
  • Emotional distress
  • The family’s loss of consortium and companionship

In cases of particularly egregious medical malpractice, punitive damages can also be assessed. These can easily double the amount that needs to be paid out.

What Makes Oberheiden P.C. Different from Other Medical Malpractice Defense Firms?

Perhaps the most important difference between Oberheiden P.C. and other medical malpractice defense firms is the fact that Oberheiden P.C. only has senior-level attorneys on its staff. This means that the work on your case does not get delegated to less experienced junior associates or to paralegals – it all gets done by a lawyer who has numerous years of handling cases just like yours.

We think that this makes our work product better in ways that help our clients succeed.

Why Doesn’t Oberheiden P.C. Call Itself the Best Medical Malpractice Defense Law Firm?

Because we think that bold statements like these are best made by our prior clients, rather than by us. You can read the testimonials that they have left about our services.

The Medical Malpractice and Healthcare Compliance Lawyers at Oberheiden P.C.

Being proactive and insulating yourself or your company from liability for medical malpractice is extremely important. The financial repercussions of an adverse outcome in these cases can be massive.

Call the healthcare compliance and medical malpractice defense attorneys at Oberheiden P.C. today at (888) 680-1745 or contact us online.

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