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The Duty to Act

Implicit in the classification of a risk is the acceptance of any legal duties that attach to the chosen risk class. It is not enough merely to identify and classify a risk; there is a corresponding duty to manage that risk. The extent of that duty is determined by the class of the risk and the probability of its occurrence. Latent risks should be planned for, but they do not demand immediate action unless they are very severe.

Sporadic risks are the most common type of risk. These are risks that have occurred in the past and may occur again in the future. Sporadic risks are usually isolated events that arise from badly planned services or defective equipment. A sporadic risk demands prompt attention because it has already occurred, putting the facility on notice of the danger.

The most dangerous types of risks are ongoing risks. These risks put patients in constant danger of serious injury. The most dramatic example of an ongoing risk is incorrect piping for anesthetic gases. More than once, a new (or refurbished) gas delivery system is an operating room has had the oxygen and nitrous oxide lines reversed. This can cause death or severe brain injury to any patient using the system. If there was even a suspicion that the gas line markings were incorrect, the hospital would have a duty to close the operating suite immediately. To do less would ensure civil liability and could even open the personnel involved to criminal action if someone died after the hospital had notice of the risk. This would be an example of the legal class of "gross negligence" or "wanton disregard" for human life.

After finding out about the duties attached to the identification of certain risks, many administrators ask, "Are we better off not knowing?" This is frequently asked when the management of a potential risk involves actions that the administrator does not have the power to take. The most common of these situations involves the discovery that a member of the medical staff, either because of illness or age-related infirmity, is a threat to the patients. The removal of a staff member is a difficult decision that is usually left to the medical staff's discretion. Medical staffs, unfortunately, are loath to remove the privileges of a colleague.

How does it benefit the administrator to find out that a staff member is seriously impaired if this knowledge leads to increased liability for the hospital? The answer to this question is complex; it involves the consideration of the long-term quality control strategy as well as the short-term management of the specific risk. The courts are increasingly unwilling to accept a defense of ignorance in a case charging the hospital with negligence in the monitoring of medical staff members. As this trend continues, it will be of less and less benefit for a hospital to be ignorant of the actions of the medical staff. Court decisions will be particularly unfavorable to institutions that try to manipulate reporting schemes to prevent detection of problems with the medical staff. The risk identification or incident reporting scheme must be comprehensive if it is to be effective. Ineffective quality control program can lead to feedback and pipelining.

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