Vicarious Liability and the Borrowed Servant
What this clause says
At all relevant times the agency nurse was acting under the direction and control of the Facility and was the borrowed servant of the Facility, which is vicariously liable for her acts and omissions.
What this actually means
Vicarious liability makes an employer responsible for the negligence of its employee. The borrowed servant doctrine extends that to someone else employee who was working under your direction and control, which is exactly the position of an agency nurse on your unit.
What it means for an operator
Agency staffing does not transfer the exposure by itself. A resident harmed by an agency nurse had no relationship with the agency, will sue you, and will plead borrowed servant, negligent selection and negligent supervision in the alternative. Whether the exposure is actually transferred depends on the contract and the certificate: the agency should carry its own professional liability at limits matching yours, name you as an additional insured on a form covering your vicarious liability, provide primary and noncontributory wording, waive subrogation and indemnify you for its own negligence. And the certificate has to be current on the date of the incident rather than on the date the relationship started, which is the most common failure in this class.
Why the Policy Checker does not score this
This term is worth understanding and cannot be checked from a declarations page. There is no single field that would answer it, and scoring it from an assumption would produce a confident wrong finding, which is the one thing a tool like this must never do. It is defined here and left out of the check.
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Common questions about this clause
- Who is liable when an agency nurse causes a claim at my facility?
- What does a senior living certificate of insurance need to show?
- What covers a claim that staff financially exploited a resident?
- What insurance does a senior housing REIT lease usually require?
- Does abuse coverage apply when one resident harms another?