Legal Review and Commentary-Negligent hiring, diagnostic failure: $600,000

News: Plaintiff alleged that the hospital negligently hired a pathologist against the recommendations of the hospital's internal quality improve- ment committee and that the physician's failure to read biopsy slides taken during an elective hysterectomy lead to an 11-month delay in the diagnosis of ovarian cancer.

Background: The plaintiff estate brought suit against the hospital where an elective hysterectomy had been performed. In the course of the procedure, biopsy tissue had been extracted and examined by the chairman of the department of pathology; however, he failed to notice that the slides of her ovary and fallopian tubes' tissues contained cancer cells. Eleven months later, she was diagnosed with ovarian cancer and claimed that the delay in diagnosis allowed for significant metastasis and reduced the chances for a possible cure. The plaintiff maintained that the hospital was negligent in its hiring of the pathologist.

Two years before the alleged missed diagnosis, the hospital's Ad Hoc Committee on Quality Improvement has decided not to endorse the pathologist's request for appointment to the medical staff and further noted that his work was not of acceptable quality for him to be qualified to lead the department of pathology. Despite the ad hoc committee's recommendation, the hospital's medical executive committee appointed the pathologist to the medical staff as chairman of the department.

While the ad hoc committee's actions are generally protected by state law, once identified as of potential interest through the discovery phase of the proceedings, after an in camera review by the judge, otherwise confidential material may be revealed. That occurred in this situation. The pathologist resigned from the position shortly after the case was revealed. It was settled out of court for $600,000 based on the theory of negligent hiring.

What this means to you: "This case demonstrates that corporate liability is alive and well as a legal means of imposing responsibility on a hospital for the acts of negligence committed by independently contracted physicians holding staff privileges as originally enunciated in Darling vs. Charleston Community Memorial Hospital by the Illinois Supreme Court in 1965 or under Respondeat Superior for negligently hiring an employee," notes John C. Metcalfe, Vice President, Risk Manage-ment Services, Memorial Health Services in Long Beach, California.

"When the trier of fact may gain access to information or documentation that staff privileges were granted or an employee was hired counter to a hospital or medical staff committee's recommendation, it should be expected that the trier of fact's evaluation will be quite critical and probably adverse to the hospital. After all, when the purpose of a committee is to evaluate quality and competency, its recommendation should not be taken lightly. When it is specifically noted that the staff member's work is not of acceptable quality, and that same staff member winds up injuring a patient, there is very little likelihood, even in the hands of the most competent and capable defense attorney, to successfully defend such a case," says Metcalfe. He suggests "that in the hospital environment, committees that review and evaluate quality and competency tend to error on the side most favorable to the staff member. Therefore, when a committee appointment to review quality and competency makes a recommendation not to endorse a staff member, a decision-making body needs to be warned of the legal ramifications of making a decision counter to the recommendations of the committee. The decision-making body needs to be specifically advised of all relevant aspects of corporate liability and the state's jury instruction on the issue should be taken into consideration."


Estate of Maria Isabel Tome v. Marvin Lessig and Christ Hospital, unknown New Jersey venue.