Virginia: Medical Malpractice – a Lawyer’s Employee

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On June 22, 2015, Federal Court denied Defendant medical center’s motion for summary judgment, which asserted Co-Defendant doctor was an independent contractor (versus its employee), thereby precluding vicarious liability. Id. at 1. The medical malpractice lawsuit is Bagheri v. Bailey, No. 1:14CV00077 in United States District Court for the Western District of Virginia, Abingdon Division.

In the Bagheri wrongful death suit, Co-Defendants contracted for emergency medicine services with the doctor “to exercise independent medical judgment,” but with the medical center able to promulgate patient care, utilization, and peer review rules; to relieve the doctor of patient care if care was inappropriate; to schedule the doctor within its guidelines; to pay the doctor an hourly wage; and to provide the doctor malpractice insurance at his cost. Id. at 3-4. Their agreement designated the doctor an “independent contractor,” and he did not consider himself an “employee” of the medical center. Id. at 5.

Sitting in diversity, however, Bagheri followed Virginia law in McDonald v. Hampton Training Sch. for Nurses, 486 S.E.2d 299, 200-01 (Va. 1997), focusing on the employer’s “power to control…the means and methods of performing the work,” regardless whether the employer exercises that power. Id. at 6-7. Because there were “facts cutting in favor of both parties,” the Bagheri medical malpractice case found that the employment status “issue must be decided by a fact finder after presentation of the parties’ evidence”. Id. at 8-9.