Hospital Liability: Addressing Legal Issues in Healthcare Organizations

1. Hospital Liability Health Care Torts

2. Hospital Organization • Board of Directors • Hospital employees • Medical - nursing, etc. • Administrative • Independent Contractors • Medical staff • Nursing • Specialty services

3. Liability Issues • Liability for injury to employees • Liability for injury to contractors • Liability to visitors • Liability to patients

4. Liability for Injury to Employees

5. Worker's compensation • Usually a comprehensive remedy • Even covers intentional torts by other employees and third parties • Some states have exceptions for deaths caused by gross negligence • Limited remedy but certain • Long term medical and disability can be expensive • Subject to lots of gaming

6. Third party actions • Injury by other contractors • Depends on whether the worker's compensation coverage is wrapped around the contractors • WC against the employer, but regular tort against the contractor • Employer is probably entitled to subrogation • Same with injuries by third parties, including patients • Might be a fireman's rule issue for dangerous patients • Mullins v. State Farm Fire and Cas. Co., 697 So.2d 750 (La.App. 1 Cir. 6/27/97)

7. Federal Civil Rights Laws • Race/Sex/Religion/Ethnicity Discrimination • ADA • Rehabilitation Act • Other federal laws that provide a direct action against the employer • 42 USC 1983 for state employees

8. Liability for Injury to Contractors • If the worker's compensation coverage does not wrap around, then no bar against regular tort claims • What if a surgeon slips on a spill in the hall?

9. Liability for Injury to Visitors • Dangerous patients • Communicable diseases • Over zealous treatment? • What would be the standard of care? • Does a visitor have to get an expert witness to prove medical standards? • Does it look more like a regular premises liability case?

10. Liability for Injuries to Patients

11. Injuries by employees • Is it within the course and scope of employment? • Respondeat Superior • "let the master answer" • Is it outside the course and scope of employment? • Did the employer fail to properly screen the employee - negligent hiring? • Was the employer on notice of the risk - negligent retention?

12. Old Defenses • Charitable immunity • Overruled - Garlington v. Kingsley, 289 So.2d 88 (La. Jan 14, 1974) (NO. 53675) • Avoiding the immunity • Borrowed servant and Captain of the Ship • Let plaintiff sue the surgeon for the hospital employee's actions • Still good when there is control of the employee, otherwise overruled - Johnston v. Southwest Louisiana Ass'n, 693 So.2d 1195, 96-1457 (La.App. 3 Cir. 1997)

13. Injuries by Independent Contractors

14. Medical Staff (Not Hospital-Based Physicians) • How do you get a physician? • Physicians admit patients, hospitals do not admit patients • If it is the physician's negligence, the hospital is not liable • The hospital is only liable for its own negligence • Negligent medical staff credentialing • Negligent retention of medical staff

15. Shared Liability • Nursing and other specialty staff have an independent duty to the patient • Recognize incorrect dosages or medications • Recognize when a patient needs attention and the physician is not available • Recognize when the physician is screwing up • The sponge count cases

16. Hospital Based Physicians • Radiologists, pathologists, etc. • Independent contractors, but not selected by the patient • Emergency Department • Sometimes staffed by medical staff, sometimes by independent staffing companies

17. Theories of Liability for Hospital-Based Physicians and Emergency Rooms • Pure independent contractor • Hospital is no liable, unless independently negligent • Control analysis • Does the hospital exercise enough control to for that physician is effectively an employee? (we will read a case) • Ostensible Agency • What does it look like to the patient?