The Legal Concept of Vicarious Liability:
Vicarious liability arises when a supervisory party is liable for the conduct of his/her subordinate. The determination of a vicarious link will depend upon the relationship between the two parties (Baez, 2010). The superior has to be determined as a respondeat superior (Wilson v. United States, 989 F.2d 953 (8th Cir. 1993)).As the Wilson Case held
The test to determine if respondeat superior applies is whether the person sought to be charged as a master had the right or power to control and direct the physical conduct of the other in the performance of the act.’ If there is no right to control, there is no liability (at 958).
Thus, the employee/employer will give rise to vicarious liability. In addition, the independent contractor who is under the control of the superior (i.e. there is little ability to determine his/her actions) will be deemed as being under a vicarious relationship (Baez, 2010). Thus, the primary purpose of vicarious liability is to hold a superior responsible when there is a breach of his/her employee (Anselmi, 2012).
It is important to stress that vicarious liability is strict, which means that once the subordinate has committed an act that gives rise to liability; the superior is immediately liable. There is no defence unless the subordinate was acting outside of his/her duties to the superior (Burlington Industries, Inc. v. Ellerth (97-569)’524 U.S. 742 (1998); Gilker, 2011).
Can Vicarious Liability be Applied in the Courtney Case:
Vicarious liability in the case of Courtney is problematic, because he owned and operated the dispensing pharmacy. This means that there is no direct employer. The pharmaceutical companies may be held liable on this link. The case of Amoco Oil
Co. v. EPA, 543 F.2d 270 (D.C.Cir. 1976) held that:
The facts and circumstances of each case must be examined individually to determine whether the relationship in question exhibits the necessary degree of control to justify the imputation of negligence from one party to the other (at 276).
The link between the pharmaceutical company and Courtney is tenuous, because this company only supplies drugs. However, there has to be safeguards in the administration of these drugs, which Hayes v.’Courtney’Jackson Co et al., Mo., Cir. Ct. No. 01CV218871 (Oct. 10, 2002) argued was not present.
The same can be true for the prescribing physician/hospital (Norton v.’Argonaut Insurance Co., 144 So.2d 249 (La 1962)). Nevertheless, there is not the direct link of control, because Courtney is not a direct employee and/or agent of either organization. Thus, it is unlikely vicarious liability will apply. However, corporate liability for failing to provide proper monitoring of the drug and specific drug plans on concentration may apply.
An action of corporate negligence links to an act that is below expected standard. This means that failing to provide adequate advice on medication plans and use will result in a breach of the duty (Norton v.’Argonaut Insurance Co). The question that will then be asked is if the act and resulting harm is foreseeable (i.e. the dilution and harm to the patients). If it is then the company can be held liable. The Hayes v.’Courtney’Jackson Co Case was an action against pharmaceutical companies, as well as Courtney for failure to monitor the dispensing of such drugs. A ruling was not made, because the companies settled. However, a sound action is present, which would include the medical physician and hospital that is caring for the patient. The rationale is that, with proper monitoring, all organizations should have identified the act of dilution (Norton v.’Argonaut Insurance Co).
Patient liability for harm may arise when the individual contributes to the act (Baez, 2010). In the Courtney Case, the use of the medications without questioning their content may be deemed as contributing (cf. Norton v.’Argonaut Insurance Co). The argument was there should be a measure of personal responsibility, as opposed to merely following orders. There is a distinction in this case, because it concerned knowledgeable medical professionals. There is no conceivable argument that the average patient could have known that he/she was taking diluted medication (Northern Pacific Railway Company v. Adams, 192’US’440 (1904)). Therefore, the patient has not contributed to the negligence in any way.