Respondeat Superior

A lesson on therapy malpractice.

Respondeat superior is Latin for the phrase "let the master answer."  Generally, the term is regarded as a legal doctrine which holds the principal/employer (for the purpose of this article, an OT or hospital) liable or responsible for the actions of the agent/employees (for the purpose of this article, a COTA or OT student) which takes place during the course of employment.  A "master" (again, an OT or hospital) is liable for injury or harm to third persons caused by his or her servant's (again, a COTA or OT student) negligent physical acts and other injurious conduct committed within the scope of his or her employment. The relationship between master and servant has to exist at the time the third party was injured for the doctrine of respondeat superior to apply. It implies that master may be liable for the acts of the servant, even if the master is without fault.  

In most states, for example, a patient who alleges that he or she was injured by the negligence of a clinician employee of an incorporated medical practice group can sue and win a case against the incorporated group on the theory of respondeat superior.  The plaintiff must prove that, at the time of the alleged negligence, the physician was an employee of the incorporated group and the negligent treatment occurred within the scope of the clinician's employment

 It also applies to hospitals, which can be held liable for the negligence of the nurses, technicians, physicians and other health-care workers it employs. It allows a plaintiff to file a lawsuit without having to prove that a specific employee was negligent, as long as the plaintiff can show that some employee of the hospital was negligent.

Imagine a non-therapy based hypothetical:  An emergency room (ER) physician is sued for failure to diagnose appendicitis. The patient was a previously healthy 23-year-old female, first seen in the emergency department with a three-day history of right-sided abdominal pain. The ER physician ordered an ultrasound, talked to the radiologist and specifically asked about the possibility of appendicitis. The radiologist said that there was no evidence of appendicitis, but there was evidence of an ovarian cyst. Additional testing was conducted. A repeat white blood count was in the normal range and the patient's symptoms improved. The ER physician advised the patient to follow up with her ob-gyn and to return to the ER if there were any problems. The patient was examined by her ob-gyn the next day. Nine days later, the patient returned to the emergency department and was diagnosed with appendicitis.  The patient later sued the ER physician but not the radiologist or her ob-gyn. Under most circumstances, this case would go to trial with a high probability of a defense verdict. But the ER physician's insurer had declared bankruptcy, leaving the physician without coverage. When the plaintiff's attorney learned that the ER physician was without insurance, he added the physician's employer as a defendant under the doctrine of respondeat superior. With a corporation able to pay a verdict if the case were tried and lost, the case goes to trial.  The verdict was in favor of the ER physician.

Imagine this therapy based hypothetical: Ms. Jones, a 54 year old Hispanic female, was recently admitted to the rehabilitation unit at Skyline Hospital after an ORIF surgical procedure on her left hip.  The orders received by the therapy department requesting for OT/PT orders and noted non-weight bearing on Ms. Jones' left leg.  The OT performs the evaluation and turns the patient over to a COTA and asked the COTA to follow the plan of care.  Despite the OT's noted evaluation for non-weight bearing, the COTA fails to recognize such a status, conducts OT treatment in standing, resulting in Ms. Jones suffering additional injuries to her left hip.  Consequently, Ms. Jones could have a legitimate cause of action (or a sound basis to sue) against the COTA, OT and Skyline Hospital based on the doctrine of respondeat superior.  In this scenario, the OT and COTA would have to be concerned with administrative proceedings through their respective state OT boards, while the hospital may be concerned with a civil lawsuit for monetary damages, along with possible punitive damages.

When COTAs and/or OT students provide clinical services, such as evaluations, screenings for symptoms or treatment, utilizing adequate clinical skills and reasoning becomes an important issue.  In fact, most incidents that lead to possible liability for OTs under the doctrine of respondeat superior would result from poor or inadequate clinical reasoning or treatment skills.  It is vital for the OT to provide sound supervision and education to his or her staff.  Furthermore, it would be beneficial to inform other therapists in the department of possible deficiencies a COTA or OT student has because they can be additional "eyes and ears" for identifying conduct that could lead to liability for both the hospital and the OT.  Lastly, although it might sound like common sense, initiating consistent and clear communication between the OT and supervised staff is absolutely essential.  Many OTs are liable for violating an administrative code or rule through their state OT Board because of inefficient communication.  This is because inefficient communication can lead to inconsistent treatment plans, non-communicated safety precautions, poor follow through of specific patient needs and much more. 

 Accordingly, it is absolutely necessary for OTs to be aware of their staff's clinical skill level and to provide adequate communication to assure proper delivery of patient treatment.  If you are a supervising OT, ask yourself this when you are gauging your COTA or OT student's skill level, "is he or she in compliance with that degree of care and skill employed by other COTAs (or OT student) generally under similar conditions and like surrounding circumstances?" 

If you or a co-worker has any questions or concerns regarding a situation similar to the aforementioned subject matter, I recommend contacting a competent attorney to understand your legal rights.

Richard Cheng, JD,OTR/L is the Director of Therapy Health Services at Visiting Nurse Association (VNA) of Texas.  Prior to his employment at VNA, Richard was an associate attorney at Pearson Randall & Schumacher & LaBore, P.A., serving clients in various legal capacities which include consumer protection, medical malpractice, nursing home litigation, business law, with an emphasis on class actions/mass torts.  Richard has conducted a bench trial, served second chair in an extensive medical malpractice jury trial (Nolan v. Mayo Clinic), attended hearings, and assisted with depositions in high profile tort litigation cases (i.e. 3M v. Palmer & Bernstein v. Extendicare Homes, Inc.).  He has published legal articles on nursing home litigation and forming business entities. Prior to Richard's legal career, he worked as a licensed occupational therapist for numerous years in rehabilitation, acute care, long term care, outpatient and home health care.  He continues to be an active clinician with home health evaluations and have served as an adjunct faculty at The College of Saint Catherine and Nova Southeastern University, teaching public policy and politics in healthcare.  In addition, he is an active member of AOTA and MOTA's Government Affairs Committee.  


First and foremost, I must start off by saying that this article was never intended to offend any OTAs or any other healthcare professionals that function in a similar capacity. The first sentence in this article started off defining the legal term "respondeat superior," which contains the term "master." I continued the use of the master/servant terms, but it was never intended to convey the OT/OTA relationship in a pejorative or deprecating fashion. I have worked with many knowledgeable OTAs during my career and I would never consider those professionals as "servants" in a professional setting. However, I am always very aware of the potential liabilities anytime when an OT/OTA relationship is created (not referencing to the professional responsibility or ethics board, but rather, from a civil liability context). The purpose of this article was merely to bring about awareness of potential civil liabilities within the OT profession for the benefit of OTs and OTAs. Even though I do not work as a practicing OT anymore, I feel that I should share what I know and give back to this wonderful profession the best way I know how.

Richard  Cheng,  General Counsel & VP,  Century RehabilitationNovember 17, 2010
Dallas, TX

I understand how you might feel about the tone, Angie, but he is actually just making clear the fact that an OTA practices under an OT’s license, just as I ,as a manager, am legally responsible for the professional acts of my employees. If my writer says something libelous, the company and I will both get sued. It was my job to know when my writer was getting into that territory. That is the law. But it’s a sensitive topic between OTs and OTAs, because an experienced OTA may know more about practice than the new grad OT who is supervising him or her. This wasn’t meant to be a reflection on OTAs.

E.J. Brown,  Editor,  Merion MattersOctober 11, 2010
King of Prussia, PA

As a COTA, I am furious at reading this and appalled that Advance would publish such demeaning work that could be detrimental to OTAs across our profession. I am proud to be an assistant in the field of occupational therapy, and I can assure you that I am NOT a servant of an OT! I have always enjoyed the collaboration with OTs and thankfully have only ever come across one who thought I was her lacky. Perhaps this person should have remained in law because he does not have a clear understanding of the rich relationship between OTs and OTAs when mutual respect is in place.

Angie Kidd,  COTAOctober 08, 2010

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