Hospital Liability Health Care Torts Hospital Organization n

Hospital Liability Health Care Torts

Hospital Organization n Board of Directors Hospital employees n Medical - nursing, etc. n Administrative Independent Contractors n Medical staff n Nursing n Specialty services

Liability Issues n n Liability for injury to employees Liability for injury to contractors Liability to visitors Liability to patients

Liability for Injury to Employees

Worker's compensation n n Usually a comprehensive remedy n Even covers intentional torts by other employees and third parties n Some states have exceptions for deaths caused by gross negligence Limited remedy but certain n Long term medical and disability can be expensive n Subject to lots of gaming

Third party actions n n Injury by other contractors n Depends on whether the worker's compensation coverage is wrapped around the contractors WC against the employer, but regular tort against the contractor n Employer is probably entitled to subrogation Same with injuries by third parties, including patients Might be a fireman's rule issue for dangerous patients

Federal Civil Rights Laws n n n 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 n n 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 n n n 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 n n Is it within the course and scope of employment? n Respondeat Superior n "let the master answer" Is it outside the course and scope of employment? n Did the employer fail to properly screen the employee - negligent hiring? n Was the employer on notice of the risk negligent retention?

Old Defenses n n Charitable immunity n Overruled - Garlington v. Kingsley, 289 So. 2 d 88 (La. Jan 14, 1974) (NO. 53675) Avoiding the immunity n Borrowed servant and Captain of the Ship n Let plaintiff sue the surgeon for the hospital employee's actions n Still good when there is control of the employee, otherwise overruled - Johnston v. Southwest Louisiana Ass'n, 693 So. 2 d 1195, 96 -1457 (La. App. 3 Cir. 1997)

Injuries by Independent Contractors

Medical Staff (Not Hospital-Based Physicians) n n 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 n Negligent medical staff credentialing

Shared Liability n Nursing and other specialty staff have an independent duty to the patient n Recognize incorrect dosages or medications n Recognize when a patient needs attention and the physician is not available n Recognize when the physician is screwing up

Hospital Based Physicians n n Radiologists, pathologists, etc. n Independent contractors, but not selected by the patient Emergency Department n Sometimes staffed by medical staff, sometimes by independent staffing companies

Theories of Liability for Hospital. Based Physicians and Emergency Rooms n n n Pure independent contractor n Hospital is no liable, unless independently negligent Control analysis n Does the hospital exercise enough control to for that physician is effectively an employee? (we will read a case) Ostensible Agency n What does it look like to the patient?