Hospital Negligence Involving Medical Staff
DARLING V. CHARLESTON COMMUNITY MEMORIAL HOSPITAL (1965) –
FAILURE TO ENFORCE RULES/END OF CHARITABLE IMMUNITY;
APPLICATION OF CORPORATE NEGLIGENCE TO HC
BACKGROUND: 16yo football player, FP improperly set orthopedic injury, hadn’t set
fx in over 3 years, failed to consult; nursing staff did not monitor, resulted in transfer and
amputation
DECISION: Hospital assume certain responsibility for care and duty to protect
patients. 1) Need for responsible credentialing, 2) Development of legal theory of
corporate negligence applied to hospitals. 3) Toppled doctrine of charitable immunity.
Hospital knew or should have known that physician not competent and can be held liable
for improper review of credentials of its staff; should have required practitioner to update
privileges. Medical staff too failed to exercise adequate supervision of staff (physicians
and nurses)
Charities at the turn of the century always had darlings, but if the darling did not do what
they were supposed to do it could lead to negligence which in this case our darling had
her leg amputated.
JOHNSON V. MISERICORDIA COMMUNITY HOSPITAL (1980) – FAILURE OF
INITIAL CREDENTIALING PROCESS
BACKGROUND: Physician negligently removed pin from hip. Physician failed to disclose 10
pending malpractice cases; misrepresented denial and restriction of privileges elsewhere. Lied
about board certification. No investigation was made of any information listed in incomplete
application. Hospital failed to check references which would have led to discovery of adverse
information should have or could have known. Med Staff Coordinator testified that information
on initial application had not been PSV.
DECISION: Hospital is responsible for information that would have been revealed during proper
credentialing, verification and peer review process. Hospital has duty to exercise care in selection
of medical staff. At minimum, should require that application be complete and verify application
statements, especially core criteria, education, training and experience. Should solicit
information from peers, determine current licensure and inquire about any challenges and
malpractice history.
Misery is caused by lying or not telling the truth and one way to relive that misery is to
get it out in the open through Primary source verification.
ELAM V COLLEGE PARK (1982) – FAILURE TO HAVE PROPER
SUPERVISION/LIABLE UNDER CORPORATE NEGLIGENCE DOCTRINE
BACKGROUND: Independent podiatrist improperly treated patient; medical records
knew of pending malpractice claims; hospital did not investigate.
DECISION: Hospital must use all information available to it when evaluating
credentials; even if information is obtained by department other than MSO. Hospital has
duty to protect patients from harm; to ensure competency and evaluate quality of medical
treatment rendered on premise. Courts noted public’s perception that hospital is a health
care facility responsible for the quality of medical care and treatment rendered within.
Though podiatrist was an independent contractor, not employee, hospital had a duty to
screen, carefully select and periodically review performance of all practitioners.
College Park is in Maryland. To get the sniper we needed to share because we needed to
catch him and if we didn’t share more people could have been shot
Antitrust and/or Peer Review
PATRICK V. BURGET (1988) – VIOLATION OF FEDERAL ANTITRUST
LAWS/ANTI-COMPETITIVE PEER REVIEW
BACKGROUND: Dr. Patrick, solo practitioner, was member of only hospital in town.
MEC and peer review committee composed of former partners. He filed antitrust lawsuit
against physicians at Astoria Clinic, alleging they caused him to lose hospital MS
privileges as result of his decision not to join their clinic but instead compete against
them. Lower court decision, overturned by Supreme Court, held that physicians were
immune from antitrust liability even for bad fait efforts under state action exemption.
DECISION: Physicians who participate in peer review could be held liable under antitrust theory. Supreme Court found that though state mandates engagement in peer
review, since the state was not involved in nor supervised action peer review decisions,
the exemption did not apply. Adverse credentialing decisions and negative peer review
are NOT immune from federal anti-trust laws. Proceedings led to passage of HCQIA in
1986
ROBINSON V MAGOVERN (1981) – DENIAL OF APPLICATION BASED ON
EXCLUSINVE CONTRACT IS NOT A RESTRAINT OF TRADE
BACKGROUND: Dr. Robinson alleged that hospital was an “essential facility” and
therefore denial of access created server handicap for entry to marketplace and sued
hospital and other thoracic surgeon after rejection of application. Hospital followed
objective criteria and bylaws; denial based on limited OR space, failure to meet academic
standards, participation in residency program. Dr. Robinson had privileges for open heart
surgery at 7 other hospitals. Denial did not prevent patients from selection him or
physician from referring to him.
DECISION: Neither hospital or surgical group had a monopoly; insufficient evidence of
specific anticompetitive intent, conspiracy or agreement to take joint action. Court noted
that 1) hospital’s policy of encouraging MS to concentrate practice at hospital; 2)
concerns regarding Dr. Robinson’s contributions to residency program and 3) concerns as
to alleged inability to work harmoniously with others, advanced hospital’s institutional
objectives for patient care and did not unreasonably restrain trade. Court upheld okay to
limit competition if consistently follow objective criteria (strategic plan, bylaws, medical
staff development plan, P&P, etc.) and/or competitive strategy to limit staff.
Song Mrs. Robinson who did not want to be exclusive in her marriage, just like Dr.
Robinson did not want to be exclusive to the hospitals he was already working at.
Difference is Mrs. Robinson wanted a younger man but Dr. Robinson did not want to
teach younger doctors
Disruptive Behavior
MILLER V EISENHOWER (1980) – DISRUPTIVE BEHAVIOR MUST BE
RELATED TO PATIENT CARE
BACKGROUND: Physician denied membership based on inability to work with others,
filed suit alleging standards were so vague and uncertain as to allow for arbitrary or
discriminatory application.
DECISION: Hospital may not permit exclusion on arbitrary or irrational basis; but
requirement for ability to work with others is permissible if that inability presents a real
and substantial danger to patient care. There must be a link between conduct and
potential effect on patient care.
The physician could not get along with the rest of the staff because he had too many
Miller beers. Disruptive Behavior was not related to patient care only to too many beers.
RAO V AUBURN (1978) – DISRUPTIVE BEHAVIOR MAY BE CONSIDERED IF
ADVERSELY EFFECTS OPERATIONS
BACKGROUND: Privileges denied based on report from other facilities re termination,
restriction of privileges, competency and emotional problems.
DECISION: Hospital has discretionary right to exclude physician whether based on lack
of proficiency or a personality if detrimental to the working of the hospital (staff’s ability
to perform jobs). Additionally, court should not substitute its evaluation of such matters
for that of BOD.
Managed Care Decisions
BOYD V EINSTEIN MEDICAL CENTER (1988) – MANAGED CARE
ORGANIZATION LIABLE FOR PRACTITIONERS ACTIONS
Surgeon accidentally perforated chest wall during breast biopsy, causing hemothorax.
Husband sued HMO and participating physician under theory of ostensible agency
following death of patient after alleged misdiagnosis. HMO represented that
participating providers were competent and evaluated up to six months prior to be
accepted on panel. Gave impression that MSO controls and is therefore liable for care
provided.
DECISION: Policy reasons for holding hospitals liable for actions of medical staff
members under theory of ostensible agency may be extended and equally applied to
HMO’s, based on limited provider list from which patient may select, selection of
practitioner by HMO, role of gatekeeper in accessing specialist; fact that patient does not
contract directly with physician but with HMO and mechanics of payment for services.
Court considered two factors: 1) whether patient looks to institution rather than
physician for care; 2) whether HMO holds out the physician as its employee. Court noted
“changing role of hospital in society creates likelihood that patients will look to
institution for care” and applied same to HMO.
Doc was working on her “boobs” when he messed up Boob and Boyd both have four
letters and begin with B. No woman in her right mind would allow a doctor to do a
breast biopsy on her if she didn’t think he was a good doctor. She thought he was a good
doctor because he was affiliated with the MCO that advertised good docs (Ostensible
Agent).
HARRELL V TOTAL HEALTH CARE (1989) – MCO FAILURE TO CREDENTIAL
BACKGROUND: Malpractice by Dr. Witt, urologist during surgery. Court reviewed
relationship between physician and Total Health Care and limited choice of providers.
DECISION: Finding an unreasonable risk of harm to subscribers if the physician is incompetent,
the Missouri court held that MCO have common law duty to members to conduct reasonable
investigation to ensure practitioners are competent and capable. Extent of investigation can be
determined on case by case basis, but no investigation means duty has not been met. However,
by Missouri state statute, a health service corporate was immune from liability for any negligence
of a person or entity rendering health care serves to the corporations members and beneficiaries,
therefore, the Missouri Supreme Court determined that an HMO is akin to a health service
corporation and eligible for same immunity. Summary judgment for Total Health Care was
affirmed; upheld defendant’s denial of responsibility under state immunity statue (Missouri).
MCCLELLAN V HEALTH MAINTENANCE ORGANIZATION OF PA (1992) –
MCO DUTY TO SELECT AND MONITOR PROVIDERS/OSTENSIBLE AGENCY
BACKGROUND: Woman selected primary care provider from list of participating
physicians provided by IPA HMO. Malignant mole sample not submitted for analysis of
tissue histology. Delay in diagnosing malignant melanoma resulted in metastatic cancer
and subsequent death. HMO promotions spoke to the quality of providers, represented as
such.
DECISION: MCO liable through theory of ostensible agency. MCO has non-delegable
duty to select and retain only competent physicians. Court found sufficient evidence to
hold that provider was ostensible agent of HMO using theories of corporate negligence
and ostensible agency. Not pre-empted by ERISA.
HCQIA – Health Care Quality Improvement Act
MATTHEWS V LANCASTER (1996) – HCQIA PRESUMPTION OF GOOD FAITH
PEER REVIEW/BURDEN ON PHYSICIAN TO PROVE BAD FAITH
BACKGROUND: Committee including competitors found substandard care; outside
consultant agreed. Surgeon challenged summary judgment, arguing bad faith.
DECISION: HCQIA presumption of good faith upheld. Hospital immune from
monetary damages under HCQIA.
Matthew from the bible did things in good faith. Burden on physician to prove otherwise