In a Maryland medical malpractice case in which the plaintiff seeks punitive damages against a doctor for conducting an unnecessary procedure, is the employer hospital vicariously liable for punitive damages?
In general, Maryland has uniformly applied a broad rule for punitive damages and held an employer vicariously liable for punitive damages for its employee’s tortious acts. Embrey v. Holly, 293 Md. 128, 137-38, 442 A.2d 966, 971 (1982). The nature of punitive damages is such that a punitive damage award may be apportioned between multiple wrongdoers depending upon the degree of culpability and the pecuniary status of each. Embrey, 293 Md. at 141, 442 A.2d at 973. In Embrey, which was a defamation case, the Court held that it was entirely proper to permit a jury to apportion punitive damages among multiple defendants, the speaker of the defamatory language and his employer radio station. Id. at 143, 442 A.2d at 974.
However, if a tortfeasor is only liable through vicarious liability, settlement with the primary tortfeasor bars recovery from the vicariously liable tortfeasor. Anne Arundel Med. Ctr. v. Condon, 102 Md. App. 408, 649 A.2d 1189 (1994). Simply, an agent and his or her principal are not joint tortfeasors for the sake of potentially recovering from both if the principal is only vicariously liable.
In medical negligence actions, the Maryland Court of Appeals has adopted the apparent authority theory from the Restatement (Second) of Agency § 267:
One who represents that another is his servant or other agent and thereby causes a third person to justifiably rely upon the care and skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such. Nelson v. Debbas, 160 Md. App. 194, 210, 862 A.2d 1083, 1092 (2004) (citing Mehlman v. Powell, 281 Md. 269, 273, 378 A.2d 1121 (1977); B.P. Oil Corp. v. Mabe, 279 Md. 632, 643, 370 A.2d 554 (1977)).
Bottom line, the hospital could be liable both through agency principles or vicariously. for more information, please contact the medical malpractice lawyers at STSW.