Board Certification

A strong current trend in state courts around the country holds hospitals liable for the acts of their emergency physicians, even when they function as independent contractors. The courts have extended liability to the hospitals under two different theories: the doctrines of "non-delegable duty," and "apparent agency." In a recent case, Simmons v. Toumey Regional Medical Center, the South Carolina Supreme Court extended this trend by applying the non-delegable duty doctrine to hospitals.¹

In Simmons, the Court consolidated two cases heard on the appellate court level. One case involved a missed diagnosis of a subdural hematoma, and the other case involved alleged delays in the diagnosis of a myocardial infarction. On appeal, the Court considered the issue addressed by the appellate courts: that hospitals owe a non-delegable duty to render competent care in their emergency departments. The term "non-delegable duty" as used in this context, means that a hospital may not delegate liability for certain responsibilities to another party. Even if the hospital actually delegates duties to an independent contractor, the non-delegable duty doctrine states that the hospital will still have vicarious (i.e., indirect) liability for the actions of the independent contractor.²

In adopting this doctrine, the Court stated that public policy requires hospitals to have such liability. According to the Court, hospitals aggressively market their services and participate in patient care. Assigning such liability to hospitals will provide "a keen incentive to do everything possible to avoid violating those duties. Immunity fosters neglect and irresponsibility, while liability encourages the exercise of due care."³ Furthermore, the Court stated that the "contract between Tuomey Regional and Coastal ... illustrates how the hospital, in ways both obvious and subtle, affects and controls the practice of medicine."⁴

The Court noted the strong trend in most states to hold hospitals liable for patient care by independent contractor physicians, especially emergency physicians. In 1987, Alaska became the first state to adopt the non-delegable duty doctrine with regard to emergency physicians in the landmark case Jackson v. Power.⁵ Since then, Florida and New York have adopted the non-delegable duty doctrine. However, many other states adopted the apparent agency doctrine.⁶

The apparent agency doctrine also holds hospitals responsible for the acts of independent contractors. However, here the plaintiff has the burden of proof and hospitals have some available defenses. The plaintiff must show that (1) the hospital held out the physician as its employee, (2) the patient relied on this representation, and (3) the patient suffered damages when relying on this representation. When invoking this doctrine, most courts require plaintiffs to show that they looked to the hospital for their care rather than the individual physician. In its defense, the hospital may contend that it did not present the physician as its employee, or that the patient looked to the physician for her care rather than the hospital.

Both doctrines operate to assign liability to a hospital for the quality of care in its emergency department. Under either doctrine, a hospital has a duty to use reasonable care in running its emergency department and in credentialing its emergency physicians. Under this trend in our courts, a hospital may not simply assign such liability to a contract group or any other third party.

Hospitals should react to this trend in our courts by taking greater care in selecting physicians to work in their emergency departments. Directly related to this issue, a recent study showed that residency-trained emergency physicians generated significantly less malpractice costs.⁷ The authors found that this difference in costs correlated with a lower incidence of claims against residency-trained emergency physicians.

Therefore, in carrying out its duty to provide care in its emergency department, a hospital should carefully consider the credentials of an emergency physician applicant, similar to how it chooses surgeons, obstetricians, cardiologists, or any other specialists. Hospitals that ignore the educational background, experience, and other credentials of its emergency physician candidates will do so at their own peril.

References

¹ 341 S.C. 32, 533 S.E.2d 312 (S.C. 2000).
² These arguments do not arise in the context of an employee-physician. Hospitals as employers will ordinarily have vicarious liability for the actions of their employees.
³ 341 S.C. at 49.
⁴ Id.
⁵ 743 P.2d 1376 (Alas. 1987).
⁶ Some courts also refer to this as the "ostensible agency" doctrine.
⁷ Branney SW, Pons PT, Markovchick VJ et al. Malpractice occurrence in emergency medicine: Does residency training make a difference? J Emerg Med 2000; 19:99-105.

AAEM Comment: AAEM members should consider sending this article to their hospital administrators. Hospitals may groan under the expanded risk of liability established in Simmons v. Tuomey and other such cases, however, they need to look at their own role in this issue. AAEM has some sound advice for hospitals: seek private groups of board-certified emergency physicians. In the described matter, Tuomey Regional Medical Center was brought to the table after two poor outcomes in patients treated by independent contractor physicians working for Coastal Physician Services of the Southeast, Inc. In the first case, P.J. McBride was released from the ED without treatment of a serious head injury. His confused state was ascribed to intoxication. A delayed diagnosis of a subdural hematoma resulted in his death 6 weeks later. In a second case that was consolidated in this matter, John H. Cooper, who had suffered a prior MI was not evaluated for his chest pain in a timely manner. Of the three named physicians, one was certified in Family Practice, none in EM. AAEM would recommend that hospitals examine the quality of their emergency physicians and the nature of their ED contract in light of these issues.