A patient who goes to the emergency room, if conscious, is mostly concerned with getting care, not with untangling the contractual relationship between the hospital and the doctors who work there. And yet the characterization of the hospital-doctor relationship has profound implications for a patient’s ability to recover against the hospital for negligent treatment. This case asks us to decide when a hospital may be liable for the negligence of a doctor working in, but not as an employee of, a hospital in its emergency room.
Cindy Essex went to Samaritan Hospital’s emergency room because she was experiencing unbearable pain in her left shoulder. [An ER physician and a radiologist] working at, but not as employees of, Samaritan failed to diagnose Cindy’s necrotizing fasciitis, an aggressive soft-tissue infection. Cindy died less than 24 hours later.
Those are the opening sentences of Essex v. Samaritan Healthcare, (4/11/2024), in which the Washington Supreme Court reversed the lower courts’ grant of partial summary judgment to the defendant hospital. The court held that the plaintiff had produced sufficient evidence to survive summary judgment and could proceed to trial against the hospital on the theories of nondelegable duty and corporate negligence.
(For discussions of medical institutional liability in other contexts, see https://www.videntpartners.com/blog/2023/medical-institutional-standard-care-and-liability-breach-independent-respondeatsuperior [contract prison healthcare provider] and https://www.videntpartners.com/blog/2024/medical-institutional-liability-take-two [physicians’ practice group].)
The Wisconsin Department of Health is required by statute to “establish minimum standards and rules concerning the operation of hospitals. The Department must amend or modify those rules as is necessary to maintain ‘standards of hospitalization required for the safe and adequate care and treatment of patients.’” (Citation omitted.)
In addition to regulating hospital leadership broadly, the Department specifically regulates “the management and care of patients receiving emergency services.” A hospital does not need to provide emergency services in order to be licensed. However, once a hospital undertakes to provide emergency services, it is subject to regulation and must
(2) Maintain the capacity to perform emergency triage and medical screening exam twenty-four hours per day;
(3) Define the qualifications and oversight of staff delivering emergency care services;
(4) Use hospital policies and procedures which define standards of care;
. . . .
(8) Assure emergency equipment, supplies and services necessary to meet the needs of presenting patients are immediately available.
When read together, these regulations impose a nondelegable duty on hospitals providing emergency services. . . .
[Pursuant to the above and other regulations,] hospitals must provide “all patients access to safe and appropriate care” and are required to establish policies concerning standards of care, nursing practices, and staff oversight. [The regulations] create a nondelegable duty for hospitals providing emergency care services through nonemployee doctors. Although hospitals may delegate the performance of this duty to nonemployee doctors, the ultimate duty – and thus the potential vicarious liability for the failure to meet that duty – remains with the hospital. (Citations omitted.)
It seems unlikely that Wisconsin’s statutes and regulations governing hospital operations are unique, so other states (not all of them, to be sure) probably have similar rules that could lead their courts to similar results. That said, the court’s other theory of hospital liability is a universally applicable precedent, because it is grounded in the common law of corporate negligence:
The doctrine of corporate negligence imposes on a hospital a nondelegable duty owed directly to the patient, regardless of the details of the doctor-hospital relationship. Accordingly, a hospital’s liability under a theory of corporate negligence is separate from its vicarious liability under the nondelegable duty doctrine. We first adopted the corporate negligence doctrine in [a 1984 case]. We adopted the doctrine to address negligence beyond that of the physician, to recognize the onus on the hospital itself for the competency of the hospital’s medical staff. We observed that the role of hospitals in our communities is changing. Hospitals serve as comprehensive health centers ultimately responsible for arranging and coordinating total health care. We adopted the corporate negligence doctrine in response to the public’s increased reliance on hospitals. (Citations, internal quotation marks and internal brackets omitted.)
The plaintiff’s expert declarations and deposition transcripts were focused on the nurses, not the physicians. An emergency nurse opined that the hospital “was negligent in respect to its core training policies and oversight function in respect to the emergency department,” and a physician similarly testified that “the hospital was negligent with respect to the oversight, training and enforcement of policies related to its nurses.” The experts agreed that, as a result of the nurses’ inadequate training, they failed to observe signs and symptoms that should have been reported to the doctors, and that the patient died because of the resulting delay in diagnosis.
Because the nurses were hospital employees, the hospital was vicariously liable for their negligence, so it’s not clear why the plaintiff felt the need to pursue the corporate negligence count as well. Indeed, the defendant’s motion was for partial summary judgment because it did not challenge the complaint’s respondeat superior count for the nurses’ negligence. Furthermore, it seems to me that the court’s conclusion comes very close to imposing respondeat superior liability for the negligence of independent contractor physicians:
Where a hospital elects to provide emergency services, our statutes and regulations create a nondelegable duty concerning the provision of those services. Doctors perform an inherent function of the hospital in carrying out that duty. Thus, we conclude that a hospital cannot escape liability for the negligent provision of emergency services by delegating that duty to its nonemployee doctors.
I have previously discussed two cases that imposed medical institutional liability in other contexts. See https://www.videntpartners.com/blog/2023/medical-institutional-standard-care-and-liability-breach-independent-respondeatsuperior (contract prison healthcare provider) and https://www.videntpartners.com/blog/2024/medical-institutional-liability-take-two (physicians’ practice group). With Essex v. Samaritan Hospital, we now have three courts reaching essentially the same conclusion by three different routes. I think this is an important trend and will continue to report on these cases as I come across them.
