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Quality Control in Health Care: Developments in the Law of Medical Malpractice

Published online by Cambridge University Press:  01 January 2021

Barry R. Furrow
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Physicians and institutional providers face expanding liability exposure today, in spite of state tort reform legislation and public awareness of the costs of malpractice for providers. Standards of practice are evolving rapidly; new medical technologies are being introduced at a rapid rate; information is proliferating as to treatment efficacy, patient risk, and diseases generally. Tort standards mirror this change. As medical standards of care evolve, they provide a benchmark against which to measure provider failure. The liability exposure of physicians is affected by (1) the generation of data, including outcomes data usable to profile physician practice, and statistical data that allows for predictions as to treatment efficacy, and patient prognosis; (2) obligations to inform patients and third parties of risk created by contagious disease and other sources of harm; (3) obligations of physicians to disclose risks that the provider creates for the patient; (4) obligations to disclose conflicts of interest arising out of the practice setting; and (5) duties arising from new epidemiological knowledge.

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Article
Information
Journal of Law, Medicine & Ethics , Volume 21 , Issue 2 , Summer 1993 , pp. 173 - 192
Copyright
Copyright © American Society of Law, Medicine and Ethics 1993

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References

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The Harvard Community Health Plan is engaged in the National Demonstration Project on Industrial Quality Control and Health Care Quality; the Park Nicollet Medical Foundation and Med Centers HealthPlan, a network model HMO with 250,000 members in Minnesota and western Wisconsin, is studying practice patterns, with variations to be subjected to peer review to correlate them to outcomes. For a summary of many of these current outcome-based research projects, see 7 Health Affairs 145–150 (1988)]Google Scholar
American Medical Association, Legal Implications of Practice Parameters (1990).Google Scholar
See generally Rheingold, Paul D., “The Admissibility of Evidence in Malpractice Cases: The Performance Records of Practitioners,” 58 Brooklyn L. Rev. 75, 80 (1992) (“It does seem inescapable…that part of the information about risks would be what the doctor's own experience has been, even if all risks are lumped together.”); Twerksi, Aaron D. and Cohen, Neil B., “Comparing Medical Providers: A First Look at the New Era of Medical Statistics,” 58 Brooklyn L. Rev. 5, 12–13 (1992) (as statistical validity of data is established, it will become part of litigation); Note, “Provider-Specific Quality-of-Care Data: A Proposal for Limited Mandatory Disclosure,” 58 Brooklyn L. Rev. 85 (1992).Google Scholar
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See Emmons, David W., Wozniak, Gregory D., Otten, Robert D. and Baker, Neal A., “Data on Employee Physician Profiling, Data on Employee Physician Profiling,” 26 J. Health and Hosp. Law 73 (March 1993); see also Eichhorn, , Cooper, , Cullen, , Maier, , Phillip, and Seeman, , “Standards for Patient Monitoring During Anesthesia at Harvard Medical School,” 256 J.A.M.A. 1017 (1986).Google Scholar
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Firm statistical distributions may also generate inferences, akin to those of res ipsa loquitur, that a patient injury is more properly attributable to provider negligence than innocent explanations, recognizing the increased statistical likelihood that a provider was negligent in the particular case. The fairest and most likely use of this is at the level of the institutional provider, with more cases and more individual providers on staff or employees.Google Scholar
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See generally Havighurst, , “Doctors and Hospitals: An Antitrust Perspective on Traditional Relationships,” 1984 Duke L.J. 1071, 1084–92.Google Scholar
Corleto v. Shore Memorial Hospital, 350 A.2d 534(N.J. 1975). This appears to be an isolated decision at present, with no other courts following suit.Google Scholar
Bell v. Sharp Cabrillo Hospital, 260 Cal. Rptr. 37 (Cal.C.A. 4th Dist. 1989)Google Scholar
Johnson v. Misericordia Community Hospital, 301 N.W.2d 156 (Wis. 1981)Google Scholar
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Insinga v. LaBella, Humana et al., 543 So.2d 209 (Fla. 1989) (non-physician fraudulently obtained an appointment to the medical staff, after having assumed the name of a deceased Italian physician); Bell v. Sharp Cabrillo Hosp., 212 Cal.App.3d 1024,260 Cal.Rptr. 886 (1989) (extreme laxity in pre-credential investigation; applicant's file was full of obvious indications of his incompetence); Rule v. Lutheran Hosp., 835 F.2d 1250 (8th Cir. 1987)Google Scholar
Pub.L.No. 99-160, 100 Stat. 3784 (codified at 42 U.S.C. s. 11101-ll152 (amended by Public Health Service Amendments of 1987, Pub.L.No. 100–177, 101 Stat. 986).Google Scholar
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Cronic v. Doud, 523 N.E.2d 176 (Ill. C.A. 1988) (unnecessary surgery by physician should have been detected by hospital through utilization review, since it had data to put it on notice of problem). Contra, Reynolds v. Mennonite Hospital, 522 N.E.2d 827 (Ill.App. 4 Dist), reh'g denied, 530 N.E.2d 264 (1988) (summary judgment for hospital on same facts as Cronic, but plaintiff had not pleaded utilization review data).Google Scholar
Cronic v. Doud, 523 N.E.2d 176 (Ill. C.A. 1988); Corleto v. Shore Memorial Hospital, 350 A.2d 534 (N.J.Super. 1975).Google Scholar
Albain v. Flower Hosp, 50 Ohio St.3d 151 (1990). See also Purcell v. Zimbelman, 500 P.2d 335 (Ariz. 1972) (hospital liable for failing to restrict operating privileges of staff surgeon, when it had constructive notice that he was incompetent to perform certain procedures, including past malpractice claims).Google Scholar
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See Schenck v. Guam, 609 F.2d 387 (9th Cir. 1979); Hull v. North Valley Hosp., 498 P.2d 136 (Mont. 1972).Google Scholar
See generally the writings of John Blum on the subject of economic credentialing. Blum, John D., “Economic Credentialing: A New Twist in Hospital Appraisal Processes, 12 J. Leg. Med. All (1991); Blum, Evaluation of Medical Staff Using Fiscal Factors: Economic Credentialing,” J. Health & Hosp. L. 65 (1993).Google Scholar
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Cronic v. Doud, 168 Ill. App.3d 665, 523 N.E.2d 176 (1988) (unnecessary surgery by physician should have been detected by hospital through utilization review, since it had data to put it on notice of problem). Contra, Reynolds v. Mennonite Hospital, 522 N.E.2d 827 (Ill.App. 4 Dist), reh'g denied, 530 N.E.2d 264 (1988) (summary judgment for hospital on same facts as Cronic, but plaintiff had not pleaded utilization review data).Google Scholar
Cronic v. Doud, 168 Ill. App.3d 665, 119 Ill. Dec. 708, 523 N.E.2d 176 (1988); Corleto v. Shore Memorial Hospital, 138 N.J.Super. 302, 350 A.2d 534 (1975).Google Scholar
Albain v. Flower Hosp, 50 Ohio St.3d 151 (S.CT. 1990).Google Scholar
Oehler v. Humana, Inc., 775 P.2d 1271 (Nev.S.Ct. 1989).Google Scholar
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A non-delegable duty is an exception to the rule that an employer is not liable for the negligence of an independent contractor. Keeton, W., Dobbs, D., Keeton, R., Owen, D., Prosser and Keeton on The Law of Torts, § 71 at 511–12 (5th ed. 1984).Google Scholar
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See also Williams v. St. Claire Medical Center, 657 S.W.2d 590 (C.A. Ky. 1983) (“when a hospital has received a patient, under whatever circumstance, and has undertaken treatment, that patient is owed a duty by the hospital through its employees and staff, including independent staff personnel, to exercise appropriate care to provide for the patient's well-being and to promote his cure…. Any lesser rule would be insensible to the true role of a hospital as an institution in present day society.”)Google Scholar
Griffin v. Matthews, 522 N.E.2d 1100 (Ohio App. 1987) (emergency room operation); Stratso v. Song, 477 N.E. 2d 1176 (Ohio App. 1984) (anesthesiologists in operating room); Stropes v. The Heritage House Children's Center of Shelbyville, Inc., 547 N.E. 2d 244 (Ind. 1989), reh'g denied, Mar. 1, 1990) (retarded child in children's center as ward of state was sexually assaulted by employee; court held that nondelegable duty owed to child to provide protection and care).Google Scholar
“The practice of emergency room medicine is not an activity that ‘starts with danger and requires preventive care to make safety,’ which would characterize the practice of medicine as an inherently dangerous activity; instead, the practice of emergency room medicine ‘starts with safety and requires negligence to make danger.’” Kelly v. St.Luke's Hospital of Kansas City, 826 S.W.2d 391, 396 (Mo.App. 1992).Google Scholar
793 P.2d 824 (Mont. 1990).Google Scholar
553 N.E.2d 1038 (Ohio 1990).Google Scholar
The mission of a hospital, and its projection to the community at large, creates expectations. “Voluntarism, community, and cooperation are potent values for hospitals, which deliver care. Hospitals sit in one place and render intimate, caring human services to people who often feel a personal identification with the institutions' histories, staffs, and corporate identities. None of this applies to health insurance, whose tasks are actuarial, technical, impersonal, and bureaucratic.” Brown, Laurence D., “Capture and Culture: Organizational Identity in New York Blue Cross,” 16 J. Health Politics, Policy and Law 651, 669 (1991).CrossRefGoogle Scholar
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See Southwick, , “Hospital Liability—Two Theories Have Emerged,” 4 J.Legal.Med. 1, 49 (1983).Google Scholar
Such judicial decisions have changed institutional provider behavior. The decision by the Alaska Supreme Court in Jackson, for example, led plaintiff's attorneys in Alaska to include hospitals in every suit they brought against individual physicians. Some hospitals in Alaska responded to this by deciding to hire their own emergency room physicians so the hospital would not have to worry about being joined in suits brought against independent contractor physicians. See Health Week, June 6, 1988, P. 1, 33.Google Scholar
The American Law Institute, Reporters' Study, Enterprise Responsibility for Personal Injury, Vol.II: Approaches to Legal and Institutional Change (April 15, 1991) at 113 et seq. (hereafter ALI Study).Google Scholar
See generally Priest, G., “The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law,” 14 J.Leg.Stud. 461 (1985). The idea can certainly trace its foundations to worker's compensation arguments. Discussions of “channeling” of liability, driven by insurance concerns, can be found in Kenneth Abraham, “Medical Malpractice Reform: A Preliminary Analysis,” 36 Maryland L.Rev. 489, 520-522 (1977). Abraham, along with Paul Weiler of Harvard, is one of the architects of the enterprise liability approach of the American Law Institute.Google Scholar
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ALI Study at 114.Google Scholar
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See ALI Study, pp. 121-126. See generally Kornhauser, , “An Economic Analysis of the Choice Between Enterprise and Personal Liability for Accidents,” 70 Cal.L.Rev. 1345 (1982); Sykes, , “The Economics of Vicarious Liability,” 93 Yale L.J. 1231(1984).CrossRefGoogle Scholar
Physician profiling has become commonplace by insurers and providers to track provider behavior. See Emmons, David W., Wozniak, Gregory D., Otten, Robert D. and Baker, Neal A., “Data on Employee Physician Profiling,” 26 J.Health and Hosp. Law 73 (March 1993); see also Eichhorn, , Cooper, , Cullen, , Maier, , Phillip, and Seeman, , “Standards for Patient Monitoring During Anesthesia at Harvard Medical School,” 256 J.A.M.A. 1017 (1986).Google Scholar
The position of the American Medical Association's House of Delegates is summed up by Corlin, Richard, MD: “One proposal Clinton's made that is absolutely nonnegotiable is enterprise liability, which means if you work for an HMO and get sued, you could get fired. This will lead to a firestorm like nothing they've ever seen. If they want a doctor strike, this is the best way to do it.” American Medical News 7 (May 17, 1993) 165; ALI Study at 118.Google Scholar