Hospital Malpractice
Brien Roche
Hospital liability arises from a number of sources. In looking at this issue it may be best to start by getting a sense of how the hospital is viewed in that area. Its overall reputation may lead you to areas you should look at.
Hospital Malpractice-Theories of Liability
The theories under which a hospital may be at fault are that of vicarious liability, independent fault, apparent agency and negligence founded upon a duty that cannot be delegated.
Vicarious Liability
Doctors are in most cases independent contractors. Unless they are direct employees they are not agents of the hospital. However nurses in most cases are employees of the hospital. This makes the hospital liable for their conduct.
Independent Fault
Independent fault of the hospital may be found in cases where they allow a doctor to practice when he is not equipped to do so. This may be referred to as a credentials problem.
In addition there may be fault in terms of the safety of structures or devices used in the hospital. There may also be fault in terms of their rules and policies. The rules and policies of concern are in many cases focused on the ER. The agency that accredits most hospitals is known as the Joint Commission. The standards promoted by this entity may provide guidance as to whether current rules and policies suffice.
Doctor’s Credentials
Credentialing is a process where the hospital reviews the doctor’s skills. Providing privileges to the doctor is the process of deciding which services the doctor should be allowed to perform in the hospital.
A neurosurgeon may be qualified to perform spinal fusions. However he may not be qualified to perform certain types of brain surgery.
The Data Bank and Joint Commission
Federal law does require that hospitals in reviewing the skills of a doctor request a report from the National Practitioner Data Bank. This provides info on legal actions against a doctor. The Joint Commission requires the review of doctors every two years. If a hospital knows or should have known that a doctor is not qualified, then allowing him to have privileges may be a breach of the standard of care. In addition failure to obtain a report from the Data Bank may be evidence of fault. Call, or contact us for a free consult.
In order to determine the doctor’s skill level it may be worthwhile to take a look at that doctor’s website. Also review of records from the State Board of Medicine as to actions against the doctor should be done. These are all things that any lay person can do.
Emergency Room Negligence
The primary rule in any emergency room is the “worst first”. In other words if life and limb threatening problems may exist they must be ruled out first. Once that has been done then the order of treatment can be better gauged. Failing to follow this rule may result in missed or delayed diagnoses. Hence missed or delayed treatment. The results can be fatal.
The Advanced Trauma Life Support Manual published by the American College of Surgeons has attempted to create some basic standards in terms of ER care. This manual sets forth some uniform responses in terms of dealing with certain issues.
In most ER settings the primary provider is a nurse. Sometimes nurses do not agree with doctor’s orders or lack of orders. The nurse has a duty to address that concern with the doctor. If the concern persists, then the nurse is to report that issue up the chain of command. The American Nurses Association Code of Ethics requires nurses to safeguard patients. This applies whenever patient health or safety could be affected by anyone’s practice. That can put a nurse at odds with a doctor.
The thrust of many ER malpractice cases is whether there was any chance of the patient having a life threatening medical condition. If that chance exists, even though remote, it must be ruled out. Even more it must be ruled out before further treatment is begun. Call, or contact us for a free consult.
Apparent Agency
Another theory of liability is that of apparent agency. In other words has the hospital created the facade of the doctor being its agent. This may be based on whether the patient is looking to the hospital for care as opposed to the doctor. Further does the hospital hold out the doctor as its employee. If so, there may be apparent agency.
ER Treaters
In most hospitals a staff member may be the initial person that greets any entrant to the ER. However the people that treat patients are employees of an independent contractor.
In many ERs you will see a sign posted stating that the people that treat you in the ER are not hospital employees or agents. Rather they are employees of an independent contractor.
In a decision from the Virginia Supreme Court it was stated that apparent agency arises from facts that cause one person to change his position to his detriment. For instance, when a delivery man hires a boy to work with him then that boy becomes the agent of the principal employer. This is known as an estoppel. The employer has at least implicitly approved such hiring.Suppose a hospital advertises its ER and encourages the public to use it. However it does not state the ER is manned by contractors. There may be an apparent agency between those contractors and the hospital.
Hospital Malpractice-Non-Delegable Duties
Finally, there may be certain duties that cannot be passed off to another. One of those may be that of providing emergency care to the public. A failure to do that may be negligence.
EMTALA Law Against Patient Dumping
The Emergency Medical Treatment and Active Labor Act (EMTALA) is also known as the Patient Anti-Dumping Statute. It protects both insured and uninsured patients. It requires that any patient who arrives at the hospital ER must be given an adequate medical screening. The patient cannot be discharged in an unstable condition. If an emergency medical condition exists the statute imposes strict liability on the provider. What that means is if the hospital fails to comply with the statute, then it is liable for its fault.
Hospital Malpractice and Safety
Hospital safety is always a pressing issue. More than 180,000 people die every year from hospital errors. Those errors come in a number of different forms.
Nearly 6,000 egregious errors occur every month among Medicare patients alone. This refers to such things as surgery on the wrong limb or items left inside a surgical site. This data comes from the U.S. Department of Health and Human Services.
The Leapfrog Group in D.C. is a non-profit which assesses hospitals on national standards of safety, quality and efficiency. Leapfrog may be a source of good info.
According to one study put out by the Institute of Medicine, nearly 400,000 drug-related injuries occur each year in hospitals. Call, or contact us for a free consult.
Improving Patient Safety
There are a host of things that hospitals must do in order to improve patient safety:
- The use of a computerized doctor order entry system. This forces doctors to enter info electronically. This reduces errors. Also this system includes bar coding. The patient’s bracelet is scanned. This ensures that the right patient is getting the meds. In addition this system allows new drug orders to be checked against the patient’s existing record. This reports interactions or allergies.
- Implementing rules for infection control as to central lines. A central line is a catheter used to provide a patient with medicine or food. If that line is tainted it can be fatal.
- Use of disinfection units that employ ultraviolet light to kill germs. There is also available electronic screening tools to pick up early signs of infection in the blood.
- Before any procedure is performed everyone in the OR engages in a “timeout”. During this timeout each person who is within the surgical area states her name, they state the patient’s name, they state the type of surgery and they state the site of the surgery. In most cases the site is marked with a marker. That way the correct site is confirmed. Until that is done the surgeon cannot touch any instruments.
- In addition sponges may be tagged with a radio frequency chip. Before the patient is closed up, the surgeon waves a wand over the body to make sure there are no sponges inside.
- Having an intensivist monitor every patient in the Intensive Care Unit reduces the risk of death by up to 40%.
- The “hand-off” procedure of one nurse to the next nurse is done in front of the patient. This way the patient meets the new nurse. In addition the patient’s condition is reviewed in front of the patient. As a result the patient can provide input.
- Hospital rooms are pressurized so that the air from contagious patients is expelled from the building. This way it does not circulate within the HVAC system.
- Hospital rooms are identical so that people coming into the room needing to find supplies only have to look in one place.
- Placing needed supplies for each patient in the patient’s room. That way the nurse does not need to leave the room to find supplies.
- The “Patient Safety Alert System” requires anyone within the health care team to report a danger to a patient. If that person makes the report, a doctor may be informed. There can be no reprimand or negative response to that reporting person. If a doctor violates that his privileges may be revoked.
- Some hospitals actually admit errors to patients promptly. In addition they may issue an apology. Also they may offer a settlement.
Preseciptions
Infection Control
Surgery
Hand Off
Facility Management
Patients First
Bedside Manner
Call, or contact us for a free consult.
Hospital Malpractice and Students in the Operating Room
Students in the operating room is not a recent happening. At most teaching hospitals, residents and/or interns may be present in the OR. A study published in March of 2011 by The Journal of the American College of Surgeons reports that where doctors in training took part in the operations they resulted in decreased mortality rates. The study also showed that there were slightly higher complication rates and that operating times for the procedures were longer. However where students in training were present follow-up care may have been better. This resulted in decreased mortality rates.
Hospital Malpractice-The End of Private Healthcare Providers
The days of individual doctors, groups of doctors or other private healthcare providers treating patients may well be coming to a close.
With increasing focus on cost in healthcare, many private practices are being bought up. Major hospitals are the buyers. The doctors are being moved to central places. The hope is economies of scale.
In addition there is increasing pressure from employers to cause employees to look for healthcare that is cheaper. Going to an individual doctor who has to bill for overhead and personnel may be too much.
Many hospitals now are leasing entire buildings. The idea is of filling them with captive doctors who work for the hospital. They are not only a source of business for the hospital but also provide certain efficiencies as to the doctor.
A plus to the doctor is that med mal insurance costs are absorbed by the hospital.
All of this can create some questions as to who is liable for the malpractice of individual doctors.
Hospital Malpractice-Contact Us
Call, or contact us for a free consult. For more information about healthcare providers, see the other pages on this site and see the pages on Wikipedia for information on hospitals.