Chapter 4.F.1 (or 2.B) -- Hospital Liability

Additional evidence that charitable immunity is not completely dead comes from Keene v. Brigham & Women’s Hospital, 439 Mass. 223 (2003), which upheld the state's $20,000 statutory cap on charitable hospital liability.  Similar issues also exist for physicians.  See Paul A. Hattis, Overcoming barriers to physician volunteerism: summary of state laws providing reduced malpractice liability exposure for clinician volunteers, 2004 U. Ill. L. Rev. 167.

Documenting an sharp increase in liability suits against nursing homes, especially in Texas and Florida, see David G. Stevenson & David M. Studdert, The Rise of Nursing Home Litigation: Findings from a National Survey of Attorneys, 22(2) Health Aff. 219 (March 2003).

For a fascinating historical account of the Schloendorff case that paints a considerably different picture of the actual facts of the case, see Paul Lombardo, Hysterical Women & Phantom Tumors: Revising Our View of the Schloendorff Case, __J. L. Med. & Ethics (Winter, 2005).

For additional commentary on the Darling case, see  Symposium, Oh, Darling! 40 Years Later: The Legacy of Darling v. Charleston Community Memorial Hospital and the Evolution of Hospital Liability, 14 Ann. Health L. 395 (2005).

Also adopting the logic that the corporate practice of medicine doctrine bars holding hospitals responsible for a physician's actions, see  Daly v. Aspen Ctr. for Women’s Health, No. 04CA0904 (Colo. Ct. App. Oct. 6, 2005). 

The Massachusetts high court ruled that a physicians' employer can be held liable despite lack of actual control of the physician's medical decisions because respondeat superior principles apply to employment regardless of actual control.  Dias v. Brigham Medical Associates, Inc., 438 Mass. 317 (2002).

For a rare decision rejecting hospital responsibility for an emergency room physician, see Sanchez v. Medicorp Health System, Va., No. 042741, 9/16/05

Three cases allow plaintiffs to prove apparent agency liability by hospitals for independent physicians outside the emergency room.  In York v. Rush-Presbyterian-St. Luke's Medical Center, Ill., No. 99507, 6/22/06), the court applied apparent agency to a hospital-based anesthesiologist despite the fact the patient was himself a retired surgeon whose son worked at the hospital.  In Malcolm v. Mt. Vernon Hospital, ________, (N.Y. App. 2003), the court reinstated a suit brought by a patient who said he was injured by a cardiologist consulted by his personal physician while he was in the intensive care unit.  The court noted that the cardiologist was chosen because he was on the hospital's medical staff, and he had other teaching and clinical responsibilities there (such as supervising physician residents).  In Burless v. West Virginia Univ. Hospitals, __ S.E.2d ___ (W. Va. 2004), the court held that summary judgment was not appropriate where the responsible physicians were faculty and residents at a university hospital, noting that the disclaimer in the informed consent form was not sufficient to inform the patient that these physicians were not in fact employees of the hospital.  Reaching a contrary decision on both points, however, the Alaska Supreme Court ruled that the version of enterprise liability that attaches to emergency room physicians does not apply to independent physicians in the hospital's operating rooms, and that the informed consent form was sufficient to notify the patient that his surgeon was not an actual employee of the hospital.  Fletcher v. South Peninsula Hospital, 71 P.3d 833  (AK 2003).

On the absence of hospital liability for physicians' failure to obtain informed consent, see Note, 1 Ind. Health L. Rev. 253 (2004); Sherwood v. Danbury Hospital, Conn., No. SC 17202, 5/16/06).

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