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?