If a malpractice lawsuit alleges an EP was impaired by drugs or alcohol while evaluating a patient, there is potential liability for the hospital, too. “Not only is the ED physician exposed to financial and possibly criminal liability, they are exposing their employer as well,” says Adnan Sabic, MD, an emergency medicine attending at St. John Hospital & Medical Center in Detroit.

Hospitals likely carry higher professional liability policy limits than the EP defendant. Another reason to name the hospital as a defendant: “Jurors sometimes find it easier to punish a ‘bricks-and-mortar’ entity, rather than an individual physician, with a sizeable verdict,” says Leslie Roberts, director of patient safety in the risk resource department of ProAssurance. Here are some ways plaintiff’s attorneys keep the hospital in the litigation against the EP:

  • Arguing that the EP’s impairment should have been discovered during the credentialing process.

The EP’s credentialing process includes a thorough background check. Once the committee approves the appointment, it means that the facility has deemed the EP competent to practice at that facility. “It also means that the hospital stands behind that physician, and vouches for the physician’s character,” Sabic says. If the hospital uses contracted EPs instead of employees, the credentialing process may remain with the hospital, or it may fall on the staffing company. “The plaintiff is hoping neither will have appropriate documentation,” Roberts notes. “Even better for the plaintiff is lack of documentation regarding hospital and ED policies and procedures.” Especially important in these cases: relevant policies on the chain of command and impaired physicians. An EP’s documented history of substance abuse is another way to keep the hospital in the litigation. “This can be presented to potential jurors as being reckless, by allowing a physician with propensity to abuse drugs to be credentialed and to work at the hospital,” Sabic offers.

  • Using the concept of apparent agency.

This legal construct can even apply if the EP is an independent contractor or employed by a group that contracts with the hospital. “Apparent agency is used because patients have no way of knowing the employment status of the physician. Most patients reasonably believe that the EP is employed by or is the agent of the hospital,” explains Laura Pimentel, MD, a clinical associate professor in the department of emergency medicine at the University of Maryland School of Medicine in Baltimore. The plaintiff will look for ways to show a contracted EP appeared to be the hospital’s employee or agent. This allows the plaintiff to name the hospital as a defendant. Roberts offers these examples:

  • the physician’s lab coat or scrubs bearing the hospital’s name;
  • a hospital-issued name tag;
  • all the many signs and forms in the hospital and ED that do not explain that EPs are contractors;
  • instances of other hospital staff referring to the EP as “my co-worker.”

Plaintiff attorneys also can point to the fact that the hospital’s board of directors grants medical staff privileges to EPs. The EPs function under the governance of the board, and are bound by the hospital’s medical staff bylaws. “If the settlement value or plaintiff verdict exceeds the policy limit of the EP’s liability coverage, plaintiff attorneys frequently sue the hospital for the balance, on the grounds that the EP is the apparent agent of the hospital,” Pimentel explains.

The cause of action alleged against a hospital in an impairment case depends on the facts of the case and the employment status of the impaired provider, explains Timothy D. Patterson, JD. “If the individual is a nurse employee, for example, the issue is more straightforward.” The hospital likely bears respondeat superior liability for the ED nurse’s actions.

“Where a contracted physician is at fault, however, the hospital may face a negligent credentialing or similar claim, targeted at the hospital’s decision to allow that individual to practice in its facility,” says Patterson, an attorney in the Richmond, VA, office of Hancock, Daniel & Johnson.

  • Arguing that the hospital was aware of a specific impairment risk.

“The case is going to be much more significant if a provider exhibited previous problems that the hospital did not timely and properly address,” Patterson warns. “That said, even first-time issues carry risk.”

Hospitals typically carry an affirmative, non-delegable duty to provide a safe environment for their patients. “This means that any impaired provider — employee or not — can subject a facility to liability exposure,” Patterson adds.

Impaired During ED Visit?

An EP’s previous problems with drugs or alcohol could be brought into the litigation. “It very much depends on what is discoverable or in the public record,” Pimentel says.

It’s possible that neither the EP’s employer nor the hospital was aware that a problem existed prior to an incident occurring at work. “If, on the other hand, a clinician has a history of problems that has been reported to the state medical board, a DUI, or loss of state license, this will likely be discovered,” Pimentel says.

If the hospital requires drug or alcohol testing on an EP, and the test is positive, depending on state law, there may be a mandatory report to the state medical board. The plaintiff attorney likely would discover this. “In the absence of objective testing, plaintiff attorneys could depose hospital employees working with the clinician at the time of the case,” says Pimentel. “They would seek evidence that the EP appeared or acted impaired.”

Plaintiff attorneys seeking to prove that an EP was impaired at the time the plaintiff was seen and evaluated might face an uphill battle in the absence of objective testing demonstrating impairment. “They will likely have to establish it through testimony from other employees or patients who observed the physician’s behavior,” Patterson says.

If a coworker or a staff member corroborates the claim that the physician was under the influence or has observed this in the past, says Sabic, “this will go a long way to sway the jury in the favor of the plaintiff.”

Defense counsel may see an opportunity to object that such testimony is speculative, or that it purports to offer expert testimony on the level of intoxication. “But on balance, those objections are likely to be deemed to go to the weight of the evidence, and the testimony will be admitted,” Patterson notes. Roberts offers these strategies for hospitals trying to manage risks related to physicians, nurses, or other ED staff using drugs or alcohol or exhibiting disruptive behavior:

  • Adopt zero-tolerance and no-retaliation policies;
  • Define acceptable and unacceptable or disruptive behavior;
  • Create a process for educating, reporting, and acting on the behavior;
  • Create processes for delaying procedures until another physician or healthcare provider is available to cover the ED;
  • Educate all ED staff to recognize the signs and symptoms of impairment, the risks of disruptive behavior, the hospital’s culture of safety, and how and when to report physicians and other healthcare providers;
  • Teach ED staff how and when to activate the organization’s chain of command policy to report an impaired physician or healthcare provider. “If staff does not feel comfortable with reporting based on potential retribution or retaliation, the facility may have a bigger issue at stake: their culture of safety,” Roberts warns.

SOURCES

  • Timothy D. Patterson, JD, Hancock, Daniel & Johnson, Richmond, VA. Phone: (866) 967-9604. Email: tpatterson@hancockdaniel.com.
  • Laura Pimentel, MD, Clinical Associate Professor, Department of Emergency Medicine, University of Maryland School of Medicine, Baltimore. Phone: (410) 328-8025. Email: lpimentel@som.umaryland.edu.
  • Leslie Roberts, Director, Patient Safety, Risk Resource, ProAssurance. Email: lroberts@proassurance.com.
  • Adnan Sabic, MD, Emergency Medicine Attending, St. John Hospital & Medical Center, Detroit. Email: adnan.sabic@ascension.org.