If patients are constantly suing an EP, the hospital can expect some legal troubles, too. “The problem with bad actors in the ED is simply that they increase the likelihood that the hospital will be dragged into a suit,” says John C. West, JD, MHA, DFASHRM, CPHRM, principal at West Consulting Services, a Signal Mountain, TN-based risk management and patient safety consulting firm.
In most states, hospitals already are vicariously liable for the actions of their hospital-based physicians, including EPs. “The vicariously liable hospital lives and dies by the defensibility of the physician claim,” West explains.
It is more difficult to defend the care of an EP who is sued constantly. However, in most jurisdictions, the plaintiff has limited ability to delve into a physician’s prior claims.
“The plaintiff attorney will certainly have access to them if they were a matter of public record,” West says. But he notes the plaintiff attorney has to find them first. “Unpublished decisions, particularly of trial courts, are very difficult to find. Other than the National Practitioner Data Bank, there really is no centralized database of malpractice claims to query.”
Even if the plaintiff attorney discovers an EP’s prior malpractice lawsuit, it is not necessarily a smoking gun. The general rule is that the plaintiff cannot use previous bad acts to show the defendant acted that same way in the present case. “Exceptions can be made when the defendant places his or her experience at issue in the case,” West says.
This can happen if the plaintiff attorney asks about an EP’s experience with a certain procedure, and the EP answers that his experience has been good. Then, somehow, the plaintiff attorney discovers the physician’s experience consists of 10 successful cases and four unsuccessful cases. “The plaintiff’s attorney can then go into detail on the procedures,” West adds.
Add-on lawsuits for negligent credentialing are another possible area of exposure for hospitals. However, this is unlikely if the EP is an independent contractor, not a hospital employee. “Negligent credentialing claims are normally brought against the hospital when the hospital is not vicariously liable for the actions of a medical staff member,” West observes.
Vicarious liability normally means the hospital is legally responsible for the actions of the EP. West has never seen allegations against a hospital for negligently credentialing an EP. “That is not to say they don’t happen. But they are exceedingly uncommon,” he reports. A negligent credentialing case might be brought if the EP does something for which he or she is not privileged, or acts outside the normal practice of an EP.
Assaulting a patient would fall in this category. “That could happen, but I have never seen such a case,” West says.