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Historical Perspectives

The first hospitals were founded in the Middle Ages. The only similarity between these facilities and the modern hospital is that they both house sick people. The hospital in the Middle Ages was run by the Church as a way station between this life and the next. While a patient would be fed and clothed, it was considered an evil act to attempt to cure the patient 's illness. Sickness was a manifestation of God's will, and it was not up to human to change God's will. In contrast, the modern hospital sees its role as that of providing acute care medical services intended to cure the patient's illness.

Several hundred years elapsed before hospitals became the "physician's workshops" that we are familiar with. The transition was complicated by the continuing involvement of religious orders, especially nuns, in the building and running of hospitals. This involvement created a tension between the spiritual orientation of the hospital and the secular nature of modern medicine. The nuns were seen as reverent and self-sacrificing, the physicians as materialistic (the accuracy of these stereotypes is irrelevant to their impact upon the law). This perception resulted in a reluctance to allow lawsuits against hospitals because the court viewed these suits as being against the self-sacrificing nuns who ran the hospital. The questions was seen as a choice between compensating one injured patient or providing care to many sick persons. Since the hospital (viewed as a charity) retained no earnings, a judgment against the hospital would have been borned by the poor that the hospital served.

The accuracy of these perceptions notwithstanding, the law solidified into the doctrine of charitable immunity. This doctrine prevented a patient from suing a hospital if the patient was injured in the hospital. This immunity from suit has disappeared over the last 15 years, but it still influences the way hospitals view their legal responsibilities. The fundamental expression of its influence is the assumption that the interests of the medical staff are the same as the interests of the hospital. As the rationale for hospitals shifted from rendering spiritual aid to rendering medical services, the medical staff became the most powerful group in the hospital. The physicians often helped to finance the original construction of the hospital and were essential to its survival. Nonmonetary considerations also bolstered the physician's power.

One of the classic distinctions between physicians and hospital personnel has been sex. Physicians were men; hospital personnel, whether nurses or nun administrators, were women. The physicians traveled in the same social circle as the members of the hospital board of trustees. The hospital personnel, whether men or women, were poorly paid and did not interact with the board of trustees except in the employer/employee relationship. An administrator or nurse who displeased a physician could expect to be fired. This led to the attitude among early hospital administrators that their job was to serve the needs of the medical staff, an attitude that created the concept of the hospital as a "physician's workshop."

The physicians workshop theory holds that a hospital has no direct relationship with the patient. The only provider-patient relationship is between the patient and the physician. The hospital may provide nursing personnel, but these nurses provide care only under the supervision of the physician. In the same way, the physician is held responsible for ensuring that all of the equipment provided by the hospital is in proper working order.

This is clearly an unrealistic view of the modern hospital; it is doubtful that it was even an accurate portrayal of the 19th century hospital. This type of unrealistic theory is called a legal fiction. A legal fiction usually exists to remedy a defect in the law that would otherwise lead to injustice.

The injustice that the fiction of the physician's workshop addresses stems from the charitable immunity bar to litigation. The courts are very reluctant to deny an injured person a legal remedy for the injury. Thus, a person who was injured through the negligence of a hospital employee would be denied any legal recourse unless the courts created a theory to circumvent the doctrine of charitable immunity. One analysis of hospitals during the period of charitable immunity showed that the physicians controlled hospital policies and were the prime economic beneficiaries of the hospital. Since a goal of tort law is to shift the burden of economic loss from the injured party to the person who caused the injury, the court used the borrowed servant doctrine to hold the physicians liable for the actions of the hospital employees.

The borrowed servant doctrine is based on the idea that an employee can be "borrowed" by someone other than the employer. The person who "borrows" the employee becomes liable for the employee's actions. This shift in responsibility for the employee's negligence follows the shift in the responsibility for directing the employee's actions. The employer's liability for the employee's negligence is based on the employer's duty to direct and supervise the employee's job performance. The financial relationship between the employer and the employee does not, in itself, make the employer liable for the employee's negligence. When a person "borrows" the employee and assumes the duty to direct and supervise that employee's activities, the borrower also assume the liability for the consequences of the employee's actions. The courts made the assumption that the physicians had assumed the duty of directing and supervising the hospital employees. This assumption allowed a patient who was injured by a negligent hospital employee to sue the patient's attending physician for the injury. The borrowed servant doctrine was also applied in situations where some of the borrowed servants were not hospital employees. The significant example of this extension was in the operating room. Here the surgeon might be assisted by medical students, residents, and even free-lance operating room technicians.

Since the borrowed servant doctrine was thought of as applying only to employees, the courts created the broader captain-of-the-ship doctrine. This doctrine is based on the assumption that the surgeon directs and supervises the actions of all members of the surgical team. The court analogized this to the role of a ship captain who is responsible for the actions of all members of the crew. (Ship captains are usually sued as the servants of the ship owners, making this analogy more literary than legal.) Like the borrowed servant doctrine, the effect of the captain-of-the-ship doctrine was to give the patient a responsible party to sue.

Though legal fictions, both of these doctrines were closed enough to the reality of the times to be reasonable approaches. The reasonableness of the two doctrines has become less clear with the evolution of the modern hospital and the concomitant development of high technology medicine.

Four fundamental changes in the practice of medicine led to the abandonment of the physician's workshop type of hospital. The first was the development of multiphysician health care teams. These teams diminished the powerful role of the attending physician, making the hospital personnel responsible to several physicians for direction in the care of a patient. This forced the hospital to assume the responsibility for keeping track of the orders of the entire physician team. Once this responsibility was assumed, it was only a short time before all the administrative aspects of patient care were shifted to the hospital.

The second change was the development of hospital-based physician groups who did not maintain individual practices. These groups formed radiology department, anesthesia departments, clinical laboratories, and other specialty service departments. While such groups maintain the legal facade of private practitioners who perform only contract work with the hospital, this is not a fair picture of their relationship with the hospital. From the patient's point of view these groups are as much a part of the hospital as the nursing service. While only a few courts have held hospitals directly liable for the actions of such in-house physician groups, their existence has caused the courts to increase the hospital's duty to coordinate the medical care rendered to patients.

The third change in medical practice has been the recognition of nursing as a skilled profession. This has been due partly to the increased legal status of women in society and partly to the complexity of nursing tasks in a high technology medical environment. As medical care has focused on (and created, as a result of the increased use of surgery) the critically ill patient, nurses have been called on to make medical judgments. In many critical care situations, the nurses must institute care before a physician can be summoned. Even in noncrisis situations, nurses are asked to perform complex patient care tasks, such as the maintenance of airways and the administration of toxic drugs. Nurses have become autonomous members of the health care team, following physicians' orders but also planning and initiating complex nursing tasks. The need to supervise these self-initiated nursing tasks has required hospitals to develop structured nursing departments that believe the notion of nurses acting only as the borrowed servants of the medical staff.

The fourth change has been the growth of proprietary hospitals and hospital management companies. Once hospitals began to be seen as profit-making businesses, the rationale for charitable immunity vanished. (Some courts allowed suits against for-profit hospitals while still barring suits against charitable hospitals.) The changes in medical care delivery have forced hospital personnel to become independent members of the health care team. At the same time, the religious-affiliation hospitals saw the supply of nuns dry up, resulting in all but a few administrators becoming secular employees. Religious hospitals have now become multimillion -dollar enterprises that bear little resemblance to their charitable predecessors. Few of them admit charity patients, and all compete openly against the for-profit hospitals. The courts have responded to this change in mission by ending the charitable immunity doctrine. It is now possible for an injured patient to sue and recover from hospitals without being forced to resort to the legal fictions of borrowed servant or captain of the ship.

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