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