‘Bad doctors’ come in many flavors, from those who are addicted to prescription or illegal drugs, to alcoholics, to those who are incompetent, and to those who put profits ahead of what is best for the patient. The patient injured by a doctor who makes one critical medical mistake might feel that such negligence qualifies the doctor as a “bad doctor.” Like many legal questions, whether you can sue a hospital for the conduct of a physician does not come with an easy ‘yes’ or ‘no’ answer.
Historically, physicians were independent contractors who applied to be on staff at one or more local hospitals. Once the physician was “on staff,” they had the ability to admit patients to the hospital and use hospital resources (e.g., nursing staff, operating rooms, etc.) to treat the patient. These doctors were not employees of the hospital. So, if the on-staff physician was negligent, the hospital could not be held liable for the physician’s misconduct. There have been several developments in Ohio over the years that increase the circumstances under which a hospital might be liable for a staff physician’s negligence.
First and foremost, there has been a trend in physicians who used to practice as independent contractors entering into employment agreements with major hospital systems. For example, most of the physicians employed by MetroHealth and the Cleveland Clinic are employees of those hospital systems. Likewise, University Hospitals owns some large practice groups that employ physicians who practice at area UH hospitals. There are some exceptions. For example, after the Cleveland Clinic acquired Hillcrest Hospital, many of the independent contractors at Hillcrest remained independent but were granted staff privileges to continue practicing at the newly named Cleveland Clinic – Hillcrest Hospital. Doctors-in-training, interns, residents and fellows, are typically employees of the hospital system where they are training. But, again, there are exceptions. For example, some residents will rotate through unrelated hospital systems.
Another circumstance where a hospital can be held liable arises when a patient seeks emergency care at a hospital. Ohio courts recognize that the publicly generally believes that physicians are employed by the hospital. Certainly, hospitals do not make patients aware that care is being provided by independent contractors. To the contrary, hospitals’ marketing schemes created the impression of a cohesive work staff, including physicians, who were available and ready to treat patients. Courts recognized that in these situations, the hospital gives the appearance that the on-staff physicians are its employees. So, Ohio courts created a rule holding that when the public seeks care at a hospital, rather than seeking care from a specific physician, the treating physicians are considered to be apparent agents of the hospital. This is called the doctrine of apparent agency or ostensible agency. When a physician appears to be the agent of the hospital, then the hospital can be held liable for the physician’s negligence as if the physician was the hospital’s employee.
The doctrine of apparent agency is frequently applied in the context of emergency medicine, when a patient shows up at a hospital that advertises an emergency room seeking emergent or urgent care. But the doctrine has been extended to other contexts as well. For example, during a hospital stay, patients may receive care from radiologists, surgeons, anesthesiologists, pathologists and a variety of specialty consultants, any of whom could be negligent. In many cases, these physicians are treated the same as hospital employees under Ohio law. Note that the rule of apparent agency does not apply when the patient goes to the hospital for purposes of seeking care from a particular doctor.
Finally, a hospital can be held liable for medical negligence committed by a doctor who was not properly vetted before receiving staff privileges. This claim is called negligent credentialing. Ohio courts recognize that a hospital owes a duty to use reasonable care in examining the qualifications of physicians seeking staff privileges and also to limit the physician’s practice to areas in which the physician has demonstrated competence. Ultimately, the hospital is responsible for policing its staff to ensure that bad doctors do not get privileges or lose their privileges when problems arise.
As a Cleveland medical malpractice lawyer, I am often involved in determining when to sue a hospital after a patient is injured by negligent care on hospital premises. While non-lawyers often assume that the hospital is liable for the negligence of staff doctors, that is not always the case. Recent trends make it more likely that the hospital is liable in these situations.
If you are interested in discussing your concerns about hospital liability, feel free to contact my office. We practice throughout the State of Ohio.