Cherry Hill Hospital (The Hospital) participates in Medicare. The Hospital contracts with a physician's group, Emergency Physicians LLC (The Group) for 24-hour coverage of its emergency department. The contract between The Hospital and the Group states that the physicians of the group are not the agents or employees of the Hospital and that the Hospital will not be liable for the negligence of The Group or its physicians. A sign in the emergency room states "The physicians working in our Emergency Department are physicians with Emergency Physicians LLC and are not employees or agents of Cherry Hill Hospital.

Around 10:00 P.M., Jane had a splitting headache. She called a friend who drove her to the Hospital's emergency room. Jane was briefly examined by the nurse and by the physician from The Group who was on duty.

Hospital protocol stated that if an adult patient came to the emergency room with a splitting headache, the patient should be given a CAT scan. The nurse asked if Jane had insurance and called X's HMO to verify coverage and obtain authorization for the scan. The HMO informed the nurse that they did not pay for this type of scan and advised Jane to call her primary physician the next day. The nurse informed the on-duty physician, who discharged X with instructions to contact her primary physician in the morning. The physician did not tell Jane that the ordinary diagnostic procedure for her condition was a CAT scan. Jane could have paid for the scan with a credit card.

Jane went home and died of an aneurysm that night. According to the autopsy report, the aneurysm was a rare type which could not have been detected with the CAT scan.

1. What claims could be asserted against Cherry Hill Hospital by Jane's estate? In discussing each claim, be sure to discuss the elements of the claim and the likelihood of success in detail.

2. What would be a checklist for determining whether the Board of Directors has policies in place to meet its fiduciary obligations.

3. What would be a checklist for exercising due diligence in forming a joint venture with a physician's group.

4. What would be a checklist of facts to assist the legal department in assessing a claim against the hospital for medical malpractice.