theory of indemnification
A tort is a commonly used term in lawsuits involving a health expert and a patient. The term is used to refer to personal injuries that one person inflicts on another either through performed or omitted actions. Meaning, one has either failed to meet their responsibility or has acted below the allowable standard of care. In nursing practice, a tort is proposed to result from either negligence or malpractice. Sometimes, in lawsuits related to torts, the defendant may not have been responsible for the cause of injury. Instead, it may be because he or she has some contractual agreements of reimbursing another party for the act of tort. This is how the doctrine of indemnification works. It allows the shifting of the fault from one defendant to another. Therefore, it is significant to demonstrate that the theory of indemnification only furthers the concept that individuals are ultimately responsible for their own actions.
Indemnification is the duty of one party to agree to shoulder damages that another party owes to a third party. The duty only arises when there are adverse claims involving monetary compensation. Indemnification can either be based on contractual or comparative equitable terms. Under comparative equitable indemnification, each party incriminated in the act of tort, reimburses the claimant, in relatively proportionate shares, based on percentages of liability attributed to each of them (Hamilton, 2015). Comparative equitable indemnification emerges from a rule holding that even a defendant with one percent liability should also be held accountable for all damages owed to the plaintiff regardless of any other party’s fault (“Risk Management Committee,” 2014). This type of indemnification demonstrates that every individual is held responsible for his or her actions that resulted in damage to the claimant, no matter how little they contributed to the action.
On the other hand, contractual indemnification is illustrated using two perspectives: implied and expressed contractual indemnity. The doctrine of implied contractual indemnity is founded upon the failure of one party to do duties highlighted in the contract, hence resulting in a tort. Under this circumstance, the party reimburses on the grounds of fairness (Hamilton, 2015).
For instance, if a physician’s actions have resulted in damage to either a group or a hospital, the physician can be sued for breach of contract or negligence (Wood, 2016). On the contrary, expressed contractual indemnification applies to situations where one party consents to indemnify, defend, and protect another party for all claims of conduct that resulted in a tort (“Risk Management Committee,” 2014).
For example, in a contract involving a physician and a hospital, an indemnification contract may be brought up with intentions of offering protection to the interests of an employer (Guido, 2014). As proposed by Wood (2016), if a physician agrees to the indemnification contract, he or she accepts to offer full reimbursement to an employer. Meaning, if the employer engages in negligence that may cause injuries to the patient, the tort is solely held to the contracting physician’s responsibility, and the physician may be personally held responsible for expenses that the hospital will be owed.
Generally, the doctrine of indemnification furthers the claim that individuals are ultimately responsible for their own actions. Equitable indemnification allows every individual to account for his or her actions no matter how insignificant they may seem. Contractual indemnification will enable individuals to be liable for their acts of signing a contract. Whether by agreeing to contract or doing an action of tort, individuals exhibit a sense of responsibility to their actions.