An Update on Vicarious Liability for Certified Nurse-Midwives/Certified Midwives

Abstract

The unique placement of midwives in the health care industry prompts renewed consideration of vicarious liability. Generally, vicarious liability is the liability of an employer for an employee's actions. A review of recent case law over the past decade shows limited case activity and indicates that the certified nurse-midwife/certified midwife (CNM/CM) roles do not create vicarious liability risks different from any other employee/agent. The lack of case law signals a lack of dispute over vicarious liability, not a lack of liability. Absent unique statutory provisions, which may be in effect in a minority of states, an employer of a CNM/CM is as liable for the midwife's negligence committed in the scope of their employment as employers are generally liable for an employee's negligence. When there is no employment/agency relationship, vicarious liability does not apply. A collaborative practice agreement is a good example of a nonemployment arrangement. Proper contractual documentation of relationships and comprehensive professional liability coverage are necessary to manage this form of liability.