For The Defense, July 2010 - DRI Today

Raleigh General Hospital, 358 S.E.2d 222,225 (W. Va. 1987), and based on advertising.Dolen v. St. Mary’s Hospital, 506 S.E.2d624 (W. Va. 1998). See, Hardy v. Brantley,471 So. 2d 358 (Miss. 1985); Thomas J. Hurney,Jr., Hospital Liability in West Virginia,95 W. Va. L. Rev. 943 (1993); See generally,Annotation, Liability of Hospital or Sanatoriumfor Negligence of Physician or Surgeon,51 A.L.R.4th 235 §5 (1987).A grant of credentials and privileges providesan independent basis of liability, notdependent on an agency relationship. Onceprivileges have been granted, the hospitalmust take reasonable steps to ensure thesafety of its patients if it knows, or shouldknow, that a physician has exhibited a patternof incompetent behavior. Strubhart v.Perry Mem’l Hosp. Trust Auth., 903 P.2d263, 273 (Okla. 1995). Hospitals have beenfound liable for allowing “incompetent”or unqualified physicians to practice aspart of their medical staffs. See, R.K., M.D.v. Ramirez, 887 S.W.2d 836, 838–39 (Tex.1994) (known substance abuse by a physicianmay result in a hospital being foundnegligent); Strubhart v. Perry Mem’l Hosp.Trust Auth., 903 P.2d 263 (Okla. 1995) (physicianwith a pattern of incompetent behavior);Blanton v. Moses H. Cone Mem’l Hosp.,Inc., 354 S.E.2d 455 (N.C. 1987) (unqualifiedphysician allowed to perform surgery);Phelps v. Physicians Ins. Co. of Wisconsin,Inc., 744 N.W.2d 880 (Wis. 2007) (lack ofoversight over inexperienced physician);Longnecker v. Loyola Univ. Med. Ctr., 891N.E.2d 954 (Ill. 2008) (duty to train and supervisephysicians); Fletcher v. South PeninsulaHospital, 71 P.3d 833 (Alaska 2003).In Bost v. Riley, 262 SE 2d 391 (N.C. App1980), the court found North Carolina hospitalshad a duty to properly credential andsupervise physicians:Since all of the above duties which havebeen required of hospitals in North Carolinaare duties which flow directly fromthe hospital to the patient, we acknowledgethat a breach of any such duty maycorrectly be termed corporate negligence,and that our State recognizesthis as a basis for liability apart and distinctfrom respondeat superior. If, asour Supreme Court has stated, a patientat a modern- day hospital has the reasonableexpectation that the hospitalwill attempt to cure him, it seems axiomaticthat the hospital have the dutyassigned by the Darling Court to make areasonable effort to monitor and overseethe treatment which is prescribed andadministered by physicians practicingat the facility.In Schelling v. Humphrey, 916 N.E.2d1029 (2009), the Ohio Supreme Court statedthat hospitals have “a direct duty to grantand to continue staff privileges only to competentdoctors…. [and] a duty to remove ‘aknown incompetent.’” Id. at 1033. Discussingthe elements of a negligent credentialingclaim, the court stated:To prove a negligent- credentialingclaim, a plaintiff injured by the negligenceof a staff doctor must show thatbut for the lack of care in the selectionor retention of the doctor, the doctorwould not have been granted staff privilegesand the plaintiff would not havebeen injured.Id.To prove causation, then, a plaintiff mustdemonstrate that a physician committedmalpractice that injured the patient. Inother words, the malpractice of the physicianis the causal link between the hospital’snegligence in allowing the physician topractice and the injury to the patient. Absenta negligent act by the physician, a plaintiffcannot prove causation to establish thehospital’s negligence in granting credentialsor privileges. See Purcell v. Zimbelman, 500P.2d 335 (Ariz. App. 1972). (“We believe itreasonably probable to conclude that hadthe hospital taken some action against Dr.Purcell, whether in the form of suspension,remonstration, restriction or other means,the surgical procedure utilized in this casewould not have been undertaken by thedoctor and Mr. Zimbelman would not havebeen injured.”); Rodrigues v. Miriam Hosp.,623 A.2d 456 (Rhode Island 1993).Limiting the Admissibilityof “Other Acts” in NegligentCredentialing CasesA key tool in the briefcase of a lawyerdefending against a negligent credentialingclaim is the general inadmissibility inmedical negligence cases of a physician’s“other acts.” Rule 404(b) of the FederalRules of Evidence and its state counterpartsgenerally state that evidence of characterand “other acts” are not admissible toprove an “action in conformity therewith.”In medical negligence trials, Federal Ruleof Evidence 404(b) is typically the basisfor excluding evidence of other lawsuits,disciplinary actions, license suspensions,failure to pass certification examinationsand comparable evidence, including evidenceof a hospital’s credentialing process.Coupled with Rule 404(b) is Federal Ruleof Evidence 403, which states that a courtmay exclude evidence, even if relevant, “ifits probative value is substantially outweighedby the danger of unfair prejudice,confusion of the issues, or misleading thejury, or by considerations of undue delay,waste of time, or needless presentation ofcumulative evidence.” Courts often weighthe admissibility of evidence of “other acts”under both Rule 404(b) and Rule 403.Medical negligence cases may involve awide variety of potentially inflammatoryand prejudicial evidence that plaintiffs mayseek to admit against physicians or otherhealth care providers. However, as long as amedical negligence case stands alone, withoutbeing combined with a negligent credentialingor negligent supervision case,courts largely exclude “other acts” as irrelevantand inadmissible. The position thatdefense counsel should take is that themedical liability case against the physicianshould stand on its own merits, without thecollateral evidence of “other acts,” underthe authority of Federal Rules of Evidence404(b) and 403 or state equivalents, whenapplicable. In the sections that follow wediscuss the major areas of “other acts” thatplaintiffs have attempted to use to establishthe negligence of physicians in “standalone” medical negligence claims.Prior Civil ActionsIn Gray v. Allen, 677 S.E.2d 862, 867 (N.C.Ct. App. 2009), the court affirmed the trialcourt’s decision to exclude evidence of priorlawsuits against the defendant, a physician,in the plaintiff’s malpractice case.Citing Rule 404(b) of the North CarolinaRules of Evidence, the appellate court heldthat prior malpractice suits against thephysician were irrelevant to determiningwhether the physician had been negligentin the case at hand. Id. Moreover, the courtnoted that evidence of prior negligenceactions against the defendant threatenedsubstantial prejudice. Id.For The Defense n July 2010 n 47