As the text notes notes, hospitals can be held liable for corporate negligence if they allowed an incompetent physician to have clinical privileges. As a member of the hospital governing board, which has the ultimate decision-making authority regarding appointments and privileges, you have received the recommendations of the medical staff for appointments and privileges to your hospital, what questions would you ask the medical staff in regards to the screening process for applicants? Chapter 8Medical Staf It's Your Gavel: Right Patient-Wrong Surgery [Bombaget v Amine - L3/4 discectomy instead of 4/5 - question of causation for two episodes - Defendant testified!! P's wife also testified that D stated that increased pain after first (mistaken) operation due to removal of wrong disc - note hearsay exception for D's admission of guilt - Directed verdict for some issues, jury determined others (damages). Upheld] Principles of Medical Ethics Code of Medical Ethics [AMA] Case: What's Wrong with this Picture [Short of lawsuit, what options are available when a patient receives inadequate and substandard care?] Medical Staff Organization [Although the text states that the following are all committees of the medical staf, the better view would be that the Executive, Bylaws, and Credentials committees are staf committees (and possibly Tissue committee), and the rest are typically hospital committees with major medical staf representation.] Executive Committee Bylaws Committee Blood Usage Committee Credentials Committee Infection Control Committee Medical Records Committee Pharmacy and Therapeutics Committee Quality Improvement Council Tissue Committee Utilization Review Committee Medical Director [Employed by hospital with duties defined in contract. Assumes responsibility for adequacy and appropriateness of care, including P&P manuals, equipment, training, staffing, hiring, etc. May be liable for below standard institutional care, but generally, vicarious liability of employer obtains. ] Medical Staff Privileges Credentialing and Privileging Process [Note that the physician must sign a document before he is admitted to the Medical Staf, and must agree to adhere to the conditions stated in the staf by laws; these documents contains a number of conditions, appeal procedures and appeal rights, typically a promise to be available for ED call, etc.] Application Medical Staff Bylaws Physical and Mental Status Consent for Release of Information Certificate of Insurance State Licensure National Practitioner Data Bank [purpose - to trigger more exhaustive review.] References Interview Process Delineation of Clinical Privileges Governing Body Responsibility Appeal Process Reappointments Screening for Competency [Johnson v Misericordia Comm. Hosp. 1981 -\"Ordinary Care\" required. Privately owned, non-JCAH approved hospital basically admits a crony to the staf as an orthopedist when all other hospitals and orthopods knew he was not qualified. Constructive Knowledge - Hospital will be held accountable for knowledge (about predictable risk to patients) it would have had if it had carried out the credentialing procedure properly. Duty established by expert witnesses from other hospitals about credential process. The facts of this case demonstrate that a hospital should, at a minimum, require completion of the application and verify the accuracy of the applicant's statements, especially in regard to his medical education, training and experience. [(fn30)] Additionally, it should: (1) solicit information from the applicant's peers, including those not referenced in his application, who are knowledgeable about his education, training, experience, health, competence and ethical character; (2) determine if the applicant is currently licensed to practice in this state and if his licensure or registration has been or is currently being challenged; and (3) inquire whether the applicant has been involved in any adverse malpractice action and whether he has experienced a loss of medical organization membership or medical privileges or membership at any other hospital. [(fn31)] The investigating committee must also evaluate the information gained through its inquiries and make a reasonable judgment as to the approval or denial of each application for staf privileges. The hospital will be charged with gaining and evaluating the knowledge that would have been acquired had it exercised ordinary care in investigating its medical staf applicants and the hospital's failure to exercise that degree of care, skill and judgment that is exercised by the average hospital in approving an applicant's request for privileges is negligence. This is not to say that hospitals are insurers of the competence of their medical staf, for a hospital will not be negligent if it exercises the noted standard of care in selecting its staf. ... Constructive knowledge, as noted by the appellate court [(fn25)] is that knowledge that one can acquire in the exercise of ordinary care.] Screening for Competency Misrepresentation of Credentials Limitations on Requested Privileges [p 183 - 1997 case where pediatrician denied neonatal intubation privileges - note: two in-hospital hearings held before judicial appeal, and P did not complain that she was unable to present all relevant evidence. - What else could she have complained of?] Case: Hospital's Duty to Ensure Competency [Candler Gen Hosp v Persaud 1994 -p 183 - Summary Judgment (for hospital) denial upheld where surgeon performed laparoscopic laser cholecystectomy using temporary privileges. Hospital has \"direct and independent responsibility to the patients\" to ensure competency.] Physician Supervision and Monitoring Disruptive Physicians Physician's Inability to Work with Others Demonstrated Inability to Work with Others Failure to Meet Ethical Standards Physician Negligence [NPDB report] Misdiagnosing Unconscious Accident Victim [1928 - P.D. doc said unconscious AA victim was drunk where he actually had head injury and multiple skull fractures. Head injury should be \"reasonably anticipated\" in an AA victim.] Failure to Respond to Emergency Call [p 186 -On-Call OB-GYN doc liable for refusal to treat - Note establishment of duty of care through call from ER doc and response required by staff bylaws.] Delaying Treatment Inadequate History and Physical Examinations [Foley v Bishop Clarkson - Reviewed in class 2; other Disciplined-Doc vs. state board cases - note that in these agency actions, courts considers issue by substantial evidence criteria for findings made by the board who sits as trier of fact.] Choice of Treatment: Two Schools of Thought [Will not be held liable where following one of two respected schools of thought by reputable authorities.] Failure to Order Diagnostic Tests [Where it is standard practice to use a given test, and not doing so resulted in missed diagnosis and injury. Must use ordinary care.] Failure to Promptly Review Test Results [p 188 - VA case - patient had ESR of 110 and no action for 4 days - spinal abscess resulting in quadriplegia - in case with mental illness - another example of \"Crazy people get sick too.\" Also, example of need for handling \"panic values.\"] Efficacy of Test Questioned [1984 - Fatigue complaints and normal hemoglobin - eventual death from colon cancer. Jury found doctor not liable for failure to obtain fecal occult blood test where there is disagreement about efficacy.] Imaging Studies/Radiology Failure to Order Appropriate Imaging Studies Image Misinterpretation Leads to Death [p 190 - apparent agency - \"... evidence showed that the Radiology Department is held out as a part of the hospital ...\"] Failure to Consult with a Radiologist Failure to Read Images [Lap pad left in - Post-op xray report not read] Delay in Conveying Imaging Report [p 190 - 1995 - Patient death with Thoracic Aortic aneurysm - 2 day delay in having radiologist read grossly abnormal x-ray - Such films normally read by ER doc. Note this would be less likely today due to conversion to digital Xrays and PACS systems] Failure to Communicate Imaging Results [1982 - lung nodule - p 169-70 - difering stories on an issue of fact: \"... Oweiss testified he received the report and informed Mrs. Barrow of its contents... Barrow stated ... he did not relay to her any information regarding an abnormal X-ray. Oweiss, however, was severely impeached at trial, and the jury chose not to believe him.\" How aggressively should communication of abnormal results be pursued? The normal activity of a physician at a follow-up visit is to review what was done at the last visit - including tests ordered.] Failure to Make a Timely Diagnosis Failure to Obtain Second Opinion [p 192 - Goodwich v Sinai Hospital (MD 1995) Another appeal of a hearing outcome. Note that this is a federal law issue tried in a state court. Non-board certified doctor practicing obstetrics repeatedly warned, and signs agreement to obtain second opinions on certain types of cases. Even though he has accepted a position at another hospital, he challenges this hospitals ruling, probably because it was reported to the NPDB. Note that the courts approach appeals of hospital credentialing decisions in a manner similar to appeals of governmental agency actions. Physician (OB-GYN who had 3 years residency but not board certified) appeals restrictions to hospital staf privileges after repeated failure to obtain consults as agreed. Trial Court grants summary judgment motion by Hospital based on immunity (under federal Health Care Quality Improvement Act of 1986). Decision is upheld because hospital acted reasonably, record \"replete with documentation\" - another phrasing for sufficient evidence. Legislatures provide Peer Reviewers statutory immunity from prosecution for certain torts to further the purpose of maintaining quality: The (HCQIA) Act provides immunity for medical peer review actions if four statutory elements exist: For purposes of the protection set forth in section 11111(a) of this title, a professional review action must be taken -(1) in the reasonable belief that the action was in the furtherance of quality health care, (i.e., in good faith) (2) after a reasonable efort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are aforded to the physician involved are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable efort to obtain facts and after meeting the requirement of paragraph (3). Failure to Refer [Note last case - Vito v N Med Fam. Physicians - symptomatic back pain treatment with OxyContin over 4 years - re-trial with diferent judge.] Practicing Outside Field of Competency [Non specialist surgeon held to Standard of specialist plastic surgeon in 18% 3rddegree burn neglected for 53 days.] Timely Diagnosis Case: Wrongful Death [P 193 -Trial court ruled \"not sufficient evidence,\" but reversed on appeal. Expert testimony essential] Misdiagnosis Mitral Valve Malfunction [p 195 - note contributory negligence defense (patient did not return for 1 week f/u as advised) held not acceptable because patient received insufficient warning of disease severity. Note trial under FTCA, but using Alabama law.] Case: Failure to Form a Differential Diagnosis [CORLEY v. STATE of Louisiana, DEPARTMENT OF HEALTH & HOSPITALS. Bench trial. Appeals court affirmed. This case is a cautionary tale about unsupervised inadequate trainee (resident/intern) care.] Appendicitis Diabetic Acidosis [p 196 - 1968 admitting doc failed to order blood test for diabetes, although a urinalysis was ordered. Specialist saw the next day, but too late. What happened to urinalysis report???] Failure to Read Nursing Notes [1994 - La. Note failure to follow written recommendation from another doctor.] Failure to Use Patient Data Gathered Assume Nothing Medication Errors Wrong Dosage Abuse in Prescribing Medications Wrongful Supply of Medications Failure to Follow a Different Course of Treatment [Note that normal medical training includes the concept that when a consultant is called and a diagnosis/recommendation is made, the doctor who calls the consultant must acknowledge that opinion; if the attending then decides to follow a course diferent than that advised, he must justify his decision in the chart.] Failure to Provide Informed Consent [P199 - \"Prima facie violation of a physician's duty to disclose.\" - Informed consent considered in later chapters.] Surgery [Surgery \"never\" events and res ipsa.] The Phantom Surgeon [p 199 - 1995 - Cleveland Clinic deviated septum - postoperative complications - Fraud and inadequate supervision of resident by staf surgeon who did not scrub! If you are in a teaching hospital, you may want to specify that the staf doctor and no resident perform the surgery.] Wrong Surgical Procedure [$10k from doctor and $90K from hospital- infected at wrong site incision] Correct Surgery-Wrong Site Wrong Site-Surgery and Fraud [ p 200 - NY 2002 - wrong kidney removed - License suspension - appellate court held there was sufficient evidence. Note that it has long been standard that all tissue removed be sent to Pathology for analysis. What happened to surgical pathology report? What should tissue committee have done?] Foreign Objects Left in Patients Case: Needle Fragment Left in Patient [\"SOL begins to run when patient can reasonably be held to have knowledge ... \"] Improper Performance of a Procedure Failure to Maintain an Adequate Airway Pathologist Misdiagnoses Breast Cancer [AAMC v Condon - reviewed last week] Aggravation of a Preexisting Condition Loss of Chance to Survive [Misreading of mass on X-ray; Missouri case of jury finding lost chance of survival but without awarding damages reversed and remanded for new trial - why?] Possibility of Survival Destroyed [\"Falling through the cracks\" - X-ray ordered in ER - report of abnormal density not acted upon] Lack of Documentation Premature Discharge [\"Risky drive-through birth\" - economic, other factors] Failure to Follow-up Infections A Case for Best Practices Infections a Recognized Risk [Nebraska - 1969 - Cannot infer negligence from infection at surgical site - How could the hospital establish that patient knows of this assumed risk?] Preventing Spread of Infections Poor Infection Control Techniques [Expert testimony on surgical technique] Obstetrics C-Section Delay Causes Injury Failure To Perform a Caesarean Section Failure To Attend Delivery: Fetus Decapitated [p 185 - OB stayed at home and left delivery to intern and third year resident - elements of intentional infliction of emotional distress] Failure To Perform Timely Caesarean Section Wrongful Death/Unborn Fetus [Injury to unborn child constituted injury to the mother, the basis for recovery with stillbirth] Psychiatry Commitment Involuntary Commitment Involuntary Commitment Ordered Continuation of Commitment Involuntary Commitment Ordered Commitment by Spouse Commitment by Parent Patient Due Process Rights [Delineated in state law] Release Denied [Trial court's decision to continue confinement despite experts' opinion that conditional release was possible upheld - many states have laws governing release of sexual predators] Recommended Discharge Denied Electroshock [Statutory and regulatory control as well as professional guidelines.] Duty To Warn Exceptions to the Duty To Warn [Shaw v Glickman - next class] Psychiatrist Duties: Tarasof - John M. Greene, M.D. August 3, 2006 Tarasoff II: California Supreme Court: \"When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.\" How Courts Have Recently Interpreted Tarasoff: A duty is present by the therapist to take some action to prevent foreseeable harm to a third party judged to be danger of being injured by the client. Most states that have dealt with a Tarasof interpretation now require the third party be defined as an \"identifiable victim,\" before the therapist can be said to have a duty to this victim. This is commonly now defined as a person the client has actually defined as a potential victim, and therefore the therapist has knowledge of this specific need to protect. Because of this new definition, the above Landmark Cases involving a random victim would not result in the same court decision today, because this definition now exists in Nebraska, Federal Court, and Delaware (as well as California). This is not the case in all states; some states continue to hold that foreseeable harm to any third party creates a duty for the therapist. ] [An actual mental health policy manual entry on duty to warn with specific signs and required actions: http://www.co.muskegon.mi.us/cmh/providermanual/section3/04-004.pdf (Links to an external site.) ] Suicidal Patients Failure to Provide Appropriate Evaluation Abandonment Physician/Patient Relationship Chapter 9Nursing and the Law [Notice that state nurse practice act passage began later then physician legislation, not completed in last state until 1952. 1970's - nurse practitioner (NP) added. ] It's Your Gavel: Chance of Survival Diminished Expanded Scope of Nursing Practice Nursing Diagnosis [Analytic and Procedural Redundancy and Error Avoidance.] Nurse Licensure Requirements for Licensure Reciprocity Endorsement Waiver Examination Suspension and Revocation Practicing without a License [Note that if a nurse is hired w/o checking on license, and he/she harms a patient, there will be additional corporate liability.] American Nurses Association National League for Nursing Nursing Negligence Nurse-Anesthetist Case: Medical Supervision [See last paragraph pg 200] Nurse Practitioner Case: Nurse's Negligence Imputed to Physician Clinical Nurse Specialist Nurse Midwife Practicing Without a License Standard of Care Required for a Nurse Midwife Nurse Managers Failure to Supervise [Where one has responsibility for the performance of others, liability accrues for failure to supervise.] Special Duty Nurse Float Staff [A floater is held to same standard of care as others in department.] Nursing Assistant Failure to Follow Policy Patient Scalded Patient Fall [Employment action - note Employee Handbook disclaimer p 224] Patient Transfer Leaving Patient Unattended Agency Staff Student Nurses [Held to same standard of care as graduate nurses.] Medication Errors Failure to Administer Drugs Failure to Document Drug Wastage Administering Unprescribed Drugs Administering the Wrong Drug Failure to Clarify Orders Administering the Wrong Dosage Case: Negligent Drug Overdose Administering Drugs by the Wrong Route Failure to Discontinue Drug Failure to Identify the Correct Patient Failure to Note an Order Change Negligent Injection Failure to Follow Physician's Orders Failure to Record Patient's Care Failure to Identify Correct Patient Burns Infections Cross-Contamination Failure to Notify Physician Inappropriate Care Leaving Patients Unattended Failure to Follow Instructions Dilemma of Two Standards Failure to Monitor Vital Signs Case: Failure to Repeat Vital Signs Failure to Report Physician Negligence Failure to Question Discharge Case: Swollen Beyond Recognition [Note the \"telephone medicine\" practiced here - p 235] Failure to Note Changes in Patient's Condition Prompt Notification Required Failure to Report Deteriorating Condition Failure to Report Patient Symptoms Timely Reporting of Patient Symptoms Failure to Report Defective Equipment Failure to Correctly Transcribe Telephone Orders Misidentifying Infants Patient Falls Restraints Failure to Follow Policy Failure to Raise Bed Rails [Note: another case where no expert testimony required - p 238] Nurse Followed Safe Procedures Fall from Examination Table Negligent Care Foreign Objects Left in Patients Nurses and Surgeons Responsible for Sponge Counts Improper Sterilization Monitor Alarm Inappropriately Disconnected