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Hospital Corporate Liability: The Walls Continue to Tumble

Published online by Cambridge University Press:  01 January 2021

Miles J. Zaremski
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Extract

Today's hospitals and health care facilities are being increasingly subjected to pressures to monitor the quality of the health care provided in their institution. One vehicle is the courts which, utilizing the doctrine of hospital corporate liability, have imposed a duty upon the hospital to use reasonable care in the selection and maintenance of physicians on its medical staff. This article will discuss three different approaches from three different states.

The first case is Johnson v. Misericordia Community Hospital, decided by the Wisconsin Supreme Court in January 1981. In its decision, the court sought to answer two questions: “Does a hospital owe a duty to its patients to use due care in the selection of its medical staffand the granting of specialized surgical (orthopedic) privileges?;” and second, “What is the standard of care that a hospital must exercise in the discharge of this duty to its patients…?”

Type
Hospital Law
Information
Medicolegal News , Volume 9 , Issue 2 , April 1981 , pp. 13 - 20
Copyright
Copyright © American Society of Law, Medicine and Ethics 1981

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Footnotes

*

See Zaremski and Spitz, Liability of a Hospital As An Institution: Are the Walls of Jericho Tumbling? The Forum 16 (2): 225 (Fall 1980).

In the October 1980 issue of Medicolegal News, Lee J. Dunn, Jr., discussed the current trend of courts to find hospitals culpable in tort litigation under the theory of corporate or institutional liability. That article concentrated on two decisions: Johnson v. Misericordia Community Hospital and Bost v. Riley. In the February 1981 issue of Medicolegal News, Professor Arthur Southwick discussed the due process rights of physicians who applied for staff privileges or who were being disciplined for misconduct in both private and public institutions. This article will explore three state court decisions that have found, under a variety of theories, a hospital liable for the negligent care afforded patients by physicians on the hospital's staff. While the articles together may appear to suggest the adage “damned if you do, damned if you don't,” they do provide significant guidance to the governors of a hospital concerning their responsibility for the medical care provided in their institution and their rights vis-a-vis their staff physicians and patients.

References

Dunn, L.J., Hospital Corporate Liability: The Trend Continues, Medicolegal News 8(5: 16 (October 1980).CrossRefGoogle ScholarPubMed
Johnson v. Misericordia Community Hosp., 294 N.W.2d 501 (Wisc. App. 1980).Google Scholar
Bost v. Riley, 262 S.E.2d 391 (N.C. App. 1980).Google Scholar
Southwick, A., The Physician's Right to Due Process in Public and Private Hospitals: Is There A Difference? Medicolegal News 9(1: 4(February 1981).CrossRefGoogle ScholarPubMed
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The Illinois Supreme Court has yet to review Darling since its decision over fifteen years ago. Recently, a petition for leave to appeal filed by the defendant hospital in Johnson v. St. Bernard Hosp., 399 N.E.2d 198 (Ill. App. 1979). The petition for leave to appeal centered on the scope of Darling's application. The petition was denied last year by the Illinois Supreme Court.Google Scholar
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Fridena v. Evans, 622 P.2d 463 (Ariz. 1980).Google Scholar
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In Johnson, supra note 5, note that the agency theory was used to establish the physician-hospital relationship, not the hospital-patient relationship. Secondly, this court also erroneously uses Darling, supra note 12, to support the notion that a hospital is responsible for the acts of physicians. To reiterate, however, the status of the physician in Darling was not stated.Google Scholar
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See, e.g., Greenberg v. Michael Reese Hosp., 415 N.E.2d 390 (Ill. 1980). “[W]hile various medical judgements are necessarily a daily part of hospital administration, they do not constitute the entirety of a hospital's function, as is the case with single medical practitioners.” Id. at 395, 396.Google Scholar
But query whether such an approach might not be politically wise; i.e., would not an unsuspecting patient (or his family) become wary upon seeing such an admonition and react by never returning to the hospital or recommending it to others. Perhaps a better way would be for the contract the hospital enters into with the physician or group staffing its emergency room or any other medical service to include a hold-harmless clause to indemnify the hospital for losses it may become responsible for due to the acts of those physicians.Google Scholar
After submission of this article for publication, the author became aware of Anesini v. Ashkenazy, Supreme Court of New York, Nassau County. There, the court, in a memorandum opinion dated December 16, 1980, concurred with the plaintiff's position that the hospital knew or should have known that the physician posed a risk to the plaintiff because the physician had often operated on patients unnecessarily in the past.Google Scholar