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February 20, 2008
Negligent Credentialing Liability
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Chief Executive Officers, Member Institutions |
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Please forward to Hospital Medical Directors, Legal Counsel & Risk
Managers |
Introduction
Last September, the Illinois Appellate Court for the First District became
the first court in Illinois to uphold a negligent credentialing claim against a
hospital. Frigo v. Silver Cross Hospital and Medical Center, 377
Ill.App.3d 43, 876 N.E.2d 697 (1st Dist. 2007). Three weeks ago, the
Illinois Supreme Court declined to review the case making Frigo the "law
of the land" for hospitals accused of negligently credentialing a physician in
Illinois. This memo discusses the ruling and its implications.
To view the opinion,
click here.
The Ruling
In Frigo, the plaintiff alleged that the hospital negligently renewed
the surgical privileges of a podiatrist who then injured the plaintiff. After
hearing conflicting expert testimony over whether the surgical privileges were
proper, the jury returned a verdict for the plaintiff awarding approximately
$7.8 million in damages.
In upholding the jury verdict, the appellate court held the following:
The Medical Studies Act does not shield hospitals from negligent
credentialing claims even though credentialing deliberations and information
are inadmissible in medical liability claims.
The plaintiff’s negligent credentialing claim did not have to meet the
willful and wanton standard of proof required under the Hospital Licensing Act
for hospital quality assurance actions because that standard only applied to
physicians challenging adverse disciplinary, credentialing and staff
membership decisions.
Claims for negligent credentialing are a natural extension of the doctrine
of institutional negligence of hospitals under Darling v. Charleston
Memorial Hospital, 33 Ill. 2d 326 (1965).
To establish a claim for negligent credentialing the plaintiff must prove
that:
The hospital failed to exercise reasonable care in granting staff
membership or clinical privileges to a physician;
The negligently privileged or credentialed physician treated the
plaintiff negligently; and
The hospital’s negligent credentialing of the negligent physician was
the proximate cause of the plaintiff’s injury.
Frigo is the first Illinois appellate ruling to recognize and apply the
negligent credentialing cause of action in a medical liability lawsuit.
The Implications
Because of the confidentiality provisions of the Medical Studies Act,
neither plaintiffs bringing negligent credentialing claims nor hospitals
defending themselves against such claims can use peer review or credentialing
committee deliberations as evidence. As in all negligence cases, the plaintiff
has the initial burden of proving that the hospital’s credentialing decision was
negligent and the Medical Studies Act keeps much of the evidence of the
hospital’s credentialing decision out of the plaintiff’s hands. As a result,
future negligent credentialing claims are likely to be based on two scenarios
where the evidence of credentialing negligence falls outside of the Medical
Studies Act:
- Failure to Follow Procedures. Similar to cases where a medical
staff disciplinary decision may be reviewed and reversed because of procedural
irregularities, a hospital must follow its credentialing bylaws, rules and
procedures to avoid negligent credentialing claims. Courts and juries are much
more comfortable holding hospitals accountable for procedural mistakes than
for substantive ones which are harder to gauge. For example, proof that the
hospital failed to check the physician medical liability and disciplinary data
in the National Practitioner Databank would be more difficult to defend
against than arguing about whether the data in the Databank supported the
denial of certain privileges.
- Strong Suggestion of Incompetence. Sometimes a plaintiff may have
strong, non-Medical Studies Act protected evidence that the physician who
treated him was unqualified. Such evidence might include repeated failures to
get board certification, failure to complete a residency, history of adverse
patient outcomes, medical malpractice claims history and licensing sanctions.
If a hospital wishes to grant membership and clinical privileges to a
physician who has some potential "smoking gun" problem in his or her
background, it may be wise to develop a track record or rational outside of
the Medical Studies Act deliberations that would explain why that "problem"
was not a barrier to staff membership and privileges for this physician. Then
the hospital would be in a better position to defend itself in a negligent
credentialing case.
These observations are merely a starting point for you and your legal counsel
to consider in how you decide to manage the new negligent credentialing
liability under Frigo. If you have any questions regarding the decision
or this memo, please contact Ted Nodzenski at (630) 276-5472 or
tnodzenski@ihastaff.org.
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