Download Slide - Medical and Public Health Law Site

Hospital Liability
Health Care Torts
Hospital Organization



Board of Directors
Hospital employees
 Medical - nursing, etc.
 Administrative
Independent Contractors
 Medical staff
 Nursing
 Specialty services
Liability Issues




Liability for injury to employees
Liability for injury to contractors
Liability to visitors
Liability to patients
Liability for Injury to Employees
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
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)
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
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?
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?
Liability for Injuries to Patients
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?
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)
Injuries by Independent Contractors
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
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
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
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?