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The Medical Staff

The liability of the hospital for the actions of a medical staff member flows from the duty to ensure the competence of the medical staff. Except in employment or agency situations, the hospital is not directly liable for the negligent actions of a medical staff member. For example, if a nurse gives a patient the wrong medicine, the hospital would be liable for the mistake. However, if a physician gives a patient the wrong medicine, the hospital would not be liable unless it was negligent in allowing the physician to have (or continue to have) staff privileges.

The granting of staff privileges could be ruled negligent for one of three reasons: (1) the criteria that were used to evaluate the applicant were insufficient to determine the applicant's competence; (2) the hospital board knew that the physician was incompetent; or (3) the board should have known that the physician was incompetent. The third situation, "should have known," is narrowly defined. It usually refers to circumstances where the nursing or the medical staffs were aware that the physician was having trouble. The board members can be put on notice of misbehavior by the reports of staff members or on the basis of their personal knowledge or information from an outside source, such as patient complaints. A failure to act when the board members have personal knowledge of negligent behavior could, as noted earlier, result in personal as well as corporate liability.

The breach of the initial duty to screen applicants for basic medical abilities is seldom sufficient to support a malpractice judgment. The failure must be obvious to reach the level of negligence. The board is allowed nonphysicians to be called doctor and to write medication orders on patients. A more common problem involves a failure to check the references be checked. A hospital that fails to discover that an applicant lost privileges elsewhere could be liable to patients injured by that physician.

Failing to discipline a physician for acts of negligence or bad judgment is the best-established basis for a suit based on negligent entrustment. If the hospital is to avoid liability, the board must act when it knows of wrongdoing. The chance of a board member being held personally liable is remote at this time, but rapid changes are being made in this area of the law. Lawsuits based on negligent entrustment are a very serious problem. One bad physician can injure many patients, all of whom are potential plaintiffs. If the suits go to trial, the jury may be enraged by the hospital's failure to discipline the physician, despite knowing about the physician's outrageous conduct. From the public relations point of view, this type of incident can affect the reputation of the entire medical staff.

The issue of when the board "should have known" about the physician's misconduct is most difficult to resolve. The courts must balance liability for actions that the board did not know about against allowing the hospital to escape liability by ignoring its duty to oversee the medical staff. The board must avoid the temptation not to find out what is happening in the hospital. In a self-insured facility, the potential losses from lawsuits by a group of injured patients could be devastating. The amount in a self-insurance trust is based on past experience of the facility and other like it. The calculations assume a relatively steady, fairly random, occurrence of claims. A grossly negligent physician could generate a unpredictable string of claims that could greatly exceed the amount in the trust. (Even conventional insurance has limits on the total claims paid during a given period.) Successful long-term planning must include ways to monitor the performance of the medical and nursing staff. But detecting wrongdoing is only the first step. The hospital must also be prepared to intervene to remedy the problem. Intervention is politically difficult, but a failure to intervene will open the way for malpractice litigation.

The most difficult situation to deal with is that involving a physician who is rendering dangerous care. The critical issue is to provide substitute care for the physician's patients. This is a problem separate from that of disciplining a negligent physician. The hospital bylaws must provide a procedure for the temporary suspension of privileges and the provision of transitional care. This is a drastic remedy, but without it the hospital may not be able to protect patients adequately from negligent injuries.

There must also be a provision for the emergency review of privileges. All suspensions should be reviewed by a physician committee, but there must also be a provision for emergency suspension by the hospital administrator. An obvious case would be a physician who comes to the hospital intoxicated. Intoxication sufficient to impair the physician's judgment would be obvious to the nursing personnel. The administrator must be able to suspend this physician's privileges temporarily. Once the nursing staff is aware that a physician is impaired, either by illness or drugs, the hospital will become liable for the physician's actions. Suspending the physician's privileges will satisfy the hospital's obligation to remove the physician.

The emergency suspension of a physician's privileges creates a special problem between the hospital and the patient. In a teaching hospital, where the patients have many primary physicians (or, in the view of some critics, no primary physician), the problem can be easily handled by diplomatically shifting the burden the care to another staff member. Suspension of privileges is also fairly simple in HMOs, where the responsibility for the patient's care is shared by many physicians. However, these two situations are exceptional. In most cases, the primary relationship is between the patient and the physician. The patient seeks care from the physician, who then admits the patient to the hospital. The patient would be justifiably upset to find that the treating physician has lost hospital privileges. The patient's wish, or even demand, to be treated by the physician does not obviate the hospital's liability for any injury that may occur as a result of the physician's negligence.

The inability of the patient's wishes to absolve the hospital from liability has two roots. The first root is the public policy that a person should not assume the risk of the consequences of negligence. This prohibition is necessary because of the unequal bargaining position of the parties in most health care transactions. In the medical situation, a patient often has little choice of physicians during an acute illness. The physician would, of course, like to have the patient agree not to sue if the care is unsuccessful. If the patient could be asked to absolve the physician of liability for negligent actions, society would lose a major control mechanism over the quality of medical care. The patient would suffer by having to choose between receiving medical care with no recourse for a negligent injury or not receiving the medical care. These problems have been weighed (by the courts) against the right of the patient to contract freely with the physician. The courts have ruled that, since the parties seldom have equal bargaining power (one party is not free to reject the unsatisfactory contract) and because the private enforcement assumption of the risk of negligence in the medical contract.

The second root is the hospital's duty to ensure the qualification of its medical staff. In the situation discussed here, the emergency suspension of privileges, the hospital is clearly on notice that the physician is impaired. The hospital's duty to monitor the medical staff is a nondelegable duty. The patient cannot be allowed to assume the responsibility for judging the physician's capabilities. In the same sense, the patient cannot be asked to bear the burden of a hospital's door with a nonstaff physician, the hospital (except in certain emergency circumstances) would not allow that physician to admit the patient to the hospital. In this situation, the hospital's duty is to protect the patient from improper care. The problem is the same if the patient is already hospitalized. If the hospital has notice that the physician is impaired, it has a duty to suspend that physician's privileges.

Once the decision to suspend privileges has been made, the physician's patients must be notified at once. The matter should be discussed with the patients, who should be asked if they want to be treated by another medical staff member. If the patient and another staff member are agreeable, new consent forms can be signed, and the responsibility of caring for the patient can be transferred. The person who talks with the patient--either another medical staff member or an administrator (unless there is a nurse the patient especially trusts)--should be careful to explain that the physician has been incapacitated by an illness or accident and can no longer care for patients. It is not necessary to elaborate on the possible hazards of allowing the physician to continue practicing.

The patient who refuses the substitution of a new physician--either in the case of an absent physician or a physician on emergency suspension--is a special problem. The hospital cannot discharge a patient who needs care. A medical staff committee should determine if it is medically appropriate to discharge the patient from the hospital. If it is appropriate to discharge the patient, this will solve the problem of substituting physicians. If it is not appropriate, the hospital must balance its duty to care for the patient against the patient's right to choose a physician. In almost all situations, the patient will eventually allow the substitution of physicians if the matter is carefully discussed so that the patient understands that it is in the patient's best interest. This may require the chief of the medical staff or the chief administrator to spend time with the patient, but this situation is rare enough that it merits such an effort. An alternative is to have the impaired physician appoint someone to take over that physician's patient care duties. While the patient may be dissatisfied with the assignment, it is legally acceptable for a physician to arrange for another physician (with appropriate privileges) to cover the former's practice. If the hospital bylaws specify that all members of the medical staff must designate someone to care for their patient's when they are unable to, the problem of physician substitution will be lessened.

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