Ch. 7 Liability of the Healthcare Institution

Erosion of Captin-of-the Ship:

Hospital argues that the surgeon, captain of the ship, calls the shots and is liable for his/her mistakes; not the hospital

Doctrine of Corporate Liability: 1. Failure to Adopt or Follow Rules

Hosptial bylaws, rules and regualtions, and the accreditation standards of The Joint Commission are admissible as evidence at trail.

Doctrine of Corporate Liability:

Hosptial itself is negligent. Not like vicarious (respondent superior) liabilty, but liaiblity attaches to the corporation indepentantly. The hosptial owes a legal duty directly to the patient, and this duty is not delegable to the medical staff or other personal.

Big issue is employment of physicians. See especially final paragraph on 211.

Payment of a salary or wage to an employed physician clearly justifies the application of vicarious liability principles. The hospital may also be liable for the negligence interns, residents, and nurses performing their customary functions on behalf of the institution.

Respondeat Superior vs. Independent Contractor Respondeat Superior

Respondeat Superior is the principle that an employer is liable for a tort an employee commits within the course and scope of such employee's employment. Even though the employer is not directly at fault, he/she/it controls the means and methods of the employee's work and thus should answer fort the employee's negligence. The duty of a healthcare institution is to have its employees use the same reasonable level of care as that practiced in similar organizations in similar communities.

Erosion of Borrowed-Servent:

Borrowed Servant refers to assistants that a surgeon calls in to do a specific surgery. They may normally be someone else's employees, but the captain is said to be responsible for them.

Almshouses

Christian charities implies were supported by donated money and services. Given their charitable nature, hopsitals and many other organizations were held to be immune form tort liability lest their good deeds be diminished by jury awards. Public wavied the right to sue if they accepting the benefits of charitable services.

Pg. 212 Apparent Agency/agency by estoppel Anesthesiologists; radiologists; pathologists; emergency physicians have apparent agency; they appear to be employees:

Closely related doctrines that can be used to counter the independent contractor defense. Most of the time, these physicians have individually or in groups contracted with the hospital to provide the various services of their specialties, but members of the public (patients) have no way to know that such contracts exist. As a defense to liability, hospitals will plead that they don't have vicarious liability because the service providers are not employees. More and more, hospitals are losing these cases. See requirement to hold a hospital liable for the negligence of an independent contract in middle of page 212. Like so many other areas of the law, the answer to the question "can a hospital insulate itself from liability by contracting with service providers", is wholly dependent on the facts of each case.

Respondeat Superior vs. Independent Contractor Independent Contractor

Employers are not responsible for the negligence of independent contractors. They must be independent in deed; not just word. See list at bottom of 210 and top of 211 for erosion of physician independent contractor status. Big issue is employment of physicians. See especially final paragraph on 211.

Government hospitals:

Enjoy immunity or partial immunity (sovereign immunity)

See list at bottom of 210 and top of 211 for erosion of physician independent contractor status.

Erosion of physician independent contractor status list: 1. An interesting # of patients no longer select their own phyisicians; rather, the hosptial, an employer, or some other third party designates the doctor or a panel of doctors. 2. Patients use hospitals' emergency services more frequently. Private physicians commonly tell patients to go to the emergncy room (ER) (or emergency department [ED]) if they have concerns outside normal office hours. "Meet me at the ER" has morphed into "The ER docs will take care of you." 3. Healthcare institutuions have increased the numner of employed physicians on their staffs and in their clinics. 4. Medical practice has become increasingly institutionalized and specialized. 5. The # of contracts with hosptials-based specialists has increased dramatically.

Doctrine of Corporate Liability: 2. Negligence in Selection and Retention of Medical Staff

The law in most states now recognizes that a corporate healthcare institution owes a duty directly ot its patients to exercise reasonable care in the selection and retention of medical staff.