As noted earlier, the hospital or group practice as a whole may be liable for breaching the duty to monitor medical staff performance. In addition, members of the governing body and reviewing committees may be held personally liable for dereliction of their legal duties. This personal liability will not be imposed because of a simple negligent failure to discipline a staff member. U.S. courts are very reticent about holding an individual personally liable in a business setting. The courts usually require an intentional action on the part of an individual before holding that individual personally liable for a business-related decision. In a situation involving the duty to monitor medical staff performance, the courts would require that the board member or review committee member involved actually knew about the substandard care rendered by the medical staff member and still failed to act.
For example, assume that the tissue committee has reviewed the surgical reports from a given physician and determined that the physician repeatedly performs unnecessary or unauthorized surgery. The tissue committee would have a duty to report this finding to the governing body. A decision by the committee to ignore the finding and make no disciplinary recommendations to the governing body could subject the committee members to personal liability for future injuries caused by the physician's negligence. If the decision not to act was based on a divided vote, the members voting to recommend discipline must record their dissent and their reasons for the dissent in the committee minutes. In addition, the dissenting members must make their vote known to the governing body if they are to escape personal liability. In the situation where a review committee does recommend revocation or limitation of staff privileges, the duty to act shifts to the governing body. A properly documented committee report and recommendation will serve to put the members of the governing body on notice that the staff member should be disciplined. At this point the reporting committee has discharged its duty.
The governing body may choose to act on the recommendation, investigate further, or ignore the recommendation. The decision to investigate further must not be a ruse to delay action. there must be a definite timetable for the investigation and a set procedure for accumulating information. If, after the investigation, the governing body chooses not to discipline the physician, it must carefully document the basis for this decision. Any specific charges by the committee that recommended disciplinary action should be answered. It must be clear from the governing body report that the committee's recommendations were investigated. If the governing body simply ignores the recommendations, its members may be held personally liable if a patient is injured as a result of their decision not to act. Dissenting members must record their vote and their objections in the official governing body minutes if they are to escape this potential individual liability.
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