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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

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Hospital liability l.jpg

Hospital Liability

Health Care Torts


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Hospital Organization

  • Board of Directors

  • Hospital employees

    • Medical - nursing, etc.

    • Administrative

  • Independent Contractors

    • Medical staff

    • Nursing

    • Specialty services


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Liability Issues

  • Liability for injury to employees

  • Liability for injury to contractors

  • Liability to visitors

  • Liability to patients



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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


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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)


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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


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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?


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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?



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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?


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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)



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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


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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


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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


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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?


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