Hospital Liability - Medical and Public Health Law Site
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Transcript Hospital Liability - 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
Exception for intentional torts in LA
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
Premises liability
Dangerous patients
Communicable diseases
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?
Intentional Torts
Course and scope of employment?
How does this change in medicine?
What about vulnerable patients?
Negligent hiring and retention?
Transforming intentional torts into negligence
Why would you do this?
How do you do this: abuse of the professional
relationship
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?