Under the ancient common law doctrine of respondeat superior, a hospital is liable for the negligence of a physician who is an employee of the hospital, but is not liable for the negligence of an independent physician who has staff privileges to practice at the hospital, i.e., an independent contractor. However, a hospital can be liable if it should not have granted staff privileges to the independent physician in the first place. This theory of direct hospital liability, called negligent credentialing, is recognized in more than 30 states. The Missouri Supreme Court has just joined them in Tharp v. St. Luke’s Surgicenter, https://www.courts.mo.gov/file.jsp?id=137243, although the court found that the plaintiffs had failed to produce sufficient evidence of negligent credentialing and therefore reversed a jury verdict in their favor.
The doctrine underlying the tort of negligent credentialing is set forth in section 411 of the Restatement (Second) of Torts, which the court quotes at page 8 of the slip opinion: “An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor: (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done.” The Restatement’s comment to this section defines a “competent and careful” contractor as one who has the “knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others.” As the court goes on to explain,
Applied in the context of credentialing physicians, a hospital, therefore, must ensure the competency of its medical staff and the quality of medical care provided through prudent selection, review and continuing evaluation of the physicians granted staff privileges. Accordingly, St. Luke’s owes a duty to its patients to credential only competent and careful physicians, because it is foreseeable that incompetent or generally careless physicians could injure St. Luke’s patients. (Citation and internal quotation marks omitted.)
Having recognized the duty, the court nevertheless found that the plaintiffs had failed to prove that the hospital breached that duty in this case. The hospital violated a provision of its own bylaws when it granted staff privileges to the surgeon in question (who settled the plaintiffs’ claim again him), but the plaintiffs introduced no evidence that the surgeon was incompetent or unqualified. Moreover, even assuming proof of breach, the plaintiffs still could not recover because they failed to establish proximate cause:
When a physician injures a patient, he or she may be liable to the patient for negligence or other tort. The hospital, however, cannot be liable for the physician’s negligence under a theory of negligent credentialing unless the patient’s injuries were the result of the hospital’s breach of a duty it owes to the patient. Because a hospital’s duty to its patients is to credential competent and careful physicians, a hospital’s act of credentialing a physician is not the proximate cause of a patient’s injuries unless the injuries are a consequence of receiving treatment from an unqualified physician. If a surgeon injures a patient while operating, not because he or she lacks the general competence or care necessary to perform the procedure, but rather because the surgeon simply was negligent in that particular instance, the patient’s injuries are not the natural and probable consequence of credentialing the surgeon. After all, even a supremely qualified, competent, and careful physician may nevertheless injure a patient through an isolated negligent act. In this circumstance…recovery against the hospital is not appropriate because the hospital bears no fault if it credentialed a competent and generally careful physician. Accordingly, a plaintiff cannot establish the [proximate] causation element of a negligent credentialing claim unless there is evidence showing the patient’s injuries were the natural and probable consequence of the surgeon’s general incompetence or carelessness. (Citation omitted.)
If you’re interested in reading more judicial opinions, articles, and blog posts on this subject, just Google “which states recognize negligent credentialing.”
