Who is liable when an agency nurse causes a claim at my facility?

Agency and contract clinical staffing moved from being an occasional stopgap to a structural feature of how senior care is staffed. Facilities routinely operate with a meaningful share of shifts filled by workers they do not employ.

Insurance did not automatically follow that shift. Liability forms distinguish between employees, who are generally insureds, and independent contractors, who generally are not, and the treatment of the facility own liability arising from contractor acts varies by form.

The first question is whether your policy covers you for claims arising out of what an agency worker did. That is vicarious liability, and it is the one that matters most, because a plaintiff suing over a medication error by an agency nurse names the facility, not the staffing agency, first.

The second is whether the agency worker is themselves an insured under your policy. That is a narrower grant and usually not present, which is generally acceptable: the worker should be covered by the agency own professional liability.

A form that provides the first without the second is a normal and workable structure. A form that provides neither leaves you exposed for the conduct of workers you direct but do not employ.

Your staffing agency agreement almost certainly requires the agency to carry professional liability, to name you as an additional insured, and often to provide a waiver of subrogation and primary and non-contributory wording.

The recurring failure is that certificates are collected and filed unread. A certificate is evidence, not coverage: it confers nothing and it does not tell you what the underlying endorsement actually says. Ask for the endorsements themselves, confirm they name your entity rather than a predecessor name, and confirm the limits match what the agreement requires rather than what the agency happens to carry.

Expect two theories. Vicarious liability, that the agency worker was acting as your agent under your direction and control, and direct negligence, that you failed to verify credentials, failed to orient the worker to your policies, or assigned an unfamiliar worker to a resident whose care plan required continuity.

The second theory is the one your own records answer. An orientation record, a credential verification record, and an assignment record showing who worked where are the documents that decide it. Facilities that use significant agency staffing and keep none of those are defending the case with the plaintiff evidence only.

Confirm your own form covers you for liability arising from independent contractor acts. Collect and actually read agency certificates and the underlying additional insured endorsements. Keep orientation and credential verification records for agency staff the same way you would for employees. And confirm your indemnity provision with the agency runs the direction you think it does, since agency form agreements often run the other way.