Liability for the Negligence of Others
Lawyers operate in a funny world. On one side of the law legislative governments write statutes. On the other side of things, courts issue decisions and catalog them. As a result, knowing the law means both knowing what the statutes say and what the decisions say and mean. Sometimes "commentators" - a fancy term for law professors with nothing better to do - compile "restatements" of the law based on principles discerned from the cases. One of the more famous restatements is the Restatement of Torts.
One of the many things you'd find in the Third Restatement is the doctrine of Negligent Entrustment. Negligent Entrustment was designed to remedy the situation where a person places a dangerous instrument into the hands of another, and a third person is injured by reason of negligence.
Normally this arises in the context of a case involving automobile use. A parent may permit their 15 year old unlicensed child to drive to the local Sonic to bring back supper, even though he knows that the child has no driver's license. He is "entrusting" his car to the child even though he knows that the child has not demonstrated competence with a vehicle by obtaining a license. If the child runs over someone on the way to the Sonic, the parent who entrusted the car may be liable under the doctrine of negligent entrustment. The cases speak about the three parties as the entrustee (the child in the example above), the entrustor (the parent), and the plaintiff.
In order to win a negligent entrustment case, the plaintiff must prove (1) the entrustee is incompetent by reason of age, inexperience, habitual recklessness, or otherwise; (2) the entrustor knew or had reason to know of the entrustee's incompetence; (3) there was an entrustment of the instrument that harmed the plaintiff; and (4) the negligence of the entrustor concurred with the conduct of the entrustee as a cause of the harm to the plaintiff. Negligent entrustment cases involving power tools and firearms are also common.
Sometimes legal theories get applied in ways that don't fit nicely into one doctrine or another. Under the law, a person is responsible for the negligence of another if they employ, supervise or direct that person. This is called vicarious liability. Under most circumstances absent some kind of employment or supervisory relationship, a party is not liable for the negligence of a truly independent contractor. Thus, in most circumstances, a nursing home would not be liable if a patient was injured during an ambulance transport by a negligent ambulance driver.
However, where a relationship exists that creates a duty to protect another exists - for example, in the case of a SNF with a duty to ensure that its residents are protected for known harms - a duty arises that can create liability where the SNF places the patient into the hands of one incompetent, and known to be incompetent. Health care entities owe a duty to their patients to protect them from harm. This is why health care facilities have fire policies that begin with R for Rescue the patient. When a patient is sick, or debilitated, they are often not able to protect themselves from harm.
Thus, when a SNF or a health care facility makes a choice of a particular provider, and places the patient into the hands of another provider, they have an obligation to make sure that the provider is competent, or more accurately, to make sure that there is no indication that the provider is incompetent.
To make this clear, consider two possible scenarios. Fast and Loose is an ambulance company known for speedy trips, but rarely employs licensed paramedics. Everyone knows that the techs are unlicensed. The ambulance that arrives to pick up the patient has only one gurney and no oxygen equipment. There is no city or county license displayed on the ambulance. A reasonable person in the position of the nursing home would know that the ambulance company is not complying with the licensure laws. If the patient is injured because of F&L's negligence, there could be liability based on the duty to protect.
On the other hand, suppose another ambulance service, Fly By Night, has seven well-equipped coaches and crisply uniformed paramedics with shiny gold badges. The service provides copies of its licenses to the facility upon request, but those licenses are clever forgeries. The patient is injured when an unlicensed driver flips the ambulance. Unless the facility had knowledge of FBN's problem before the event occurred, no liability attaches.
As another recent blog post pointed out, facilities want to reduce costs, and one way to do that is to seek bids and get lower prices for services. One of the services frequently required is non-emergency ambulance transport. It is very important that if you use something other than the local governmental or 911 services for patient transports, that you make sure that the service is fully licensed and insured.
Any time an ambulance service contracts with a facility, the contract should require the ambulance service to maintain all state, county and local ambulance licenses in active condition. You should ask to see copies of the licenses, and should note when they come up for renewal. At no time should a patient be transported in an ambulance that has not met all the requirements imposed by state and local government.
The contract should also require that the nursing facility be covered as an "additional insured" by the ambulance service's liability policy against any claim of negligence or negligence in the entrustment of the patient to the service. The contract should specify that the ambulance service "indemnifies and holds harmless" the service provider. These magic words place the cost of defense for any action arising from negligent ambulance care squarely on the ambulance provider.
It is not enough, however, to simply require these contractual pieces. The ambulance service must be checked every six months to ensure that it is still licensed and still insured. If the service drops its insurance carrier, even though the facility may have indemnity language in the contract, it may still have the deepest pockets and be the most likely lawsuit target if something goes wrong. Normally when the principally-liable defendant is insolvent, that's when lawyers get creative with their allegations of negligence.
Protecting the facility from liability requires making sure that all ancillary providers, from nursing agencies to ambulance companies, meet all the requirements to do the job.