Hospital might be liable for physician misconduct
If an emergency physician is arrested for assaulting a patient or for inappropriate sexual conduct, there is potential liability exposure for both the hospital where the ED is located and the emergency medicine (EM) group, says Thomas H. Taylor, a health care attorney at LaCrosse, WI-based Johns Flaherty.
The hospital faces potential liability for negligence in the credentialing and privileging process if it knew or reasonably should have known that the physician in question presented a risk of harm to the patient.
Whether liability exists for an emergency medicine group depends on how the group is structured, whether the physician is an employee or an independent contractor, the scope of the group's insurance coverage, and any contractual indemnification provisions that might exist, says Scott A. Edelstein, a health care attorney with Washington, DC-based Squire Sanders.
Potential liability is due to several theories:
• Negligent hiring, if the group failed to exercise reasonable care in performing employee reference checks and assessing the physician during the hiring and employment process.
Before hiring new emergency medicine physicians or locum tenens, verify their credentials, check their references, and engage in reference checks with hospitals where they have had emergency medicine and other privileges, advises Taylor.
In one case, a hospital was found not liable for the negligent hiring of an employee who was accused of sexually assaulting a patient.1 "The New York Court of Appeals determined that the hospital acted with reasonable care in hiring and supervising the employee and that its management did not authorize, participate in, consent to, or ratify the employee's alleged conduct," says Edelstein.
• Negligence, if the group knew or should have known about the risk of a sexual or other assault upon a patient, based upon the physician's past conduct in the workplace and elsewhere.
• Respondeat superior, or vicarious liability, if the physician was acting within the scope of his or her employment when he or she sexually or otherwise assaulted the patient.
"Although it is hard to comprehend any circumstances when such a physician would be deemed to have acted within the scope of his or her employment at the time, some courts have evaluated that issue primarily from the perspective of a patient," says Taylor.
If the patient was receiving care in the ED and the physician crossed boundaries and engaged in inappropriate conduct, some courts have held the physician group liable on a respondeat superior theory.
Taylor has acted as legal counsel in advising and representing physicians and physician practice groups accused of engaging in inappropriate conduct, including one case of an emergency medicine practice group sued on a respondeat superior theory after a physician inappropriately touched and fondled a patient.
Take action if accusations are made
If allegations are made against an emergency physician or other staff member, carefully and thoroughly investigate those allegations. "If they are founded, take appropriate disciplinary action, up to and including termination of employment," says Taylor. "If the allegations are unfounded, communicate with the patient and, in addition, caution the physician about the need to be more sensitive about the manner in which his or her conduct can be misperceived."
Taylor also has represented emergency medicine physicians who have been falsely accused of engaging in inappropriate conduct during pelvic examinations. To avoid allegations of misconduct in this kind of situation, engage in a full informed consent discussion with the patient beforehand to ensure that the patient understands and agrees to the examination, and always have a nurse or other member of the patient care team in the room to witness and document the manner in which the examination occurred, he advises.
It is not unusual for physician contracts and personnel policies and procedures to permit the group to suspend a physician pending the outcome of the investigation, says Edelstein.
The group should discipline the physician for verified actions according to its personnel policies and procedures. "These policies and procedures should address the imposition of sanctions against any personnel for impermissible behavior," says Edelstein.
However, the mere fact that the physician has been arrested or accused of improper behavior does not mean that he or she is guilty. "The determination of guilt for the alleged assault can only be made by a court," says Edelstein.
Reference
- Judith M. v. Sisters of Charity Hospital, 93 N.Y.2d 932 (N.Y. 1999).
Sources
For more information, contact:
- Scott A. Edelstein, Squire, Sanders & Dempsey, 1201 Pennsylvania Ave. N.W., Washington, DC 20004. Phone: (202) 626-6602. Fax: (202) 626-6780. E-mail: [email protected].
- Thomas H. Taylor, Johns, Flaherty & Collins, 205 Fifth Ave. S., Suite 600, P.O. Box 1626, LaCrosse, WI 54602-1626. Phone: (608) 784-5678. E-mail: [email protected].
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