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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

Hospital Liability

Health Care Torts

hospital organization
Hospital Organization
  • Board of Directors
  • Hospital employees
    • Medical - nursing, etc.
    • Administrative
  • Independent Contractors
    • Medical staff
    • Nursing
    • Specialty services
liability issues
Liability Issues
  • Liability for injury to employees
  • Liability for injury to contractors
  • Liability to visitors
  • Liability to patients
worker s compensation
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
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
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
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
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?
injuries by employees
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
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)
medical staff not hospital based physicians
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
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
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
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?