Albain v. Flower Hospital, 50 Ohio St.3d 251 (1990)
Plaintiff was eight months pregnant, when at approximately 1:30 p.m., she began bleeding vaginally. Paramedics took Plaintiff to Flower Hospital at 2:00 p.m. Plaintiff’s doctor was called (Crayne), but did not have staff privileges at Flower Hospital, so Plaintiff was put into the care of Dr. Billings (the only hospital resident on duty at the time). Dr. Billings called Dr. Abbo, the on-call staff obstetrician, who was seeing patients in her office at the time. Dr. Abbo was kept aware of Plaintiff and her baby’s condition and Dr. Abbo said she would come personally evaluate Plaintiff at 5:30 p.m. Dr. Abbo did not arrive at the hospital to evaluate Plaintiff until 8:00 p.m., and at that time, decided to transfer Plaintiff to Riverside Hospital to prepare for a pre-term baby.
Plaintiff was admitted to Riverside, where she was evaluated by Dr. Crayne (Plaintiff’s doctor) and Dr. Marlowe (the staff obstetrician). Dr. Marlowe determined that a possible abruptio placentae had occurred and delivered the baby by cesarean section at 11:49 p.m. The infant suffered from neonatal asphyxia, and died two months later.
Plaintiff filed a wrongful death and survivorship claims against Flower Hospital, Riverside Hospital, and Drs. Abbo, Crayne, and Marlowe. Plaintiff alleged that they either acting jointly, severally, or concurrently, failed to monitor and diagnose Plaintiff’s condition, and failed to prescribe proper diagnostic measures. Additionally, Plaintiff alleged Flower Hospital and Dr. Abbo delayed the C-section by failing to diagnose the placenta abruptio. An arbitration panel granted directed verdict for Riverside Hospital and Dr. Marlowe, and found for the other defendants in a hearing. Plaintiff denied the arbitration decision and filed suit. The trial court granted summary judgment for Flower Hospital and Dr. Crayne, but Dr. Abbo’s trial had yet to occur. Plaintiff appealed and The court of appeals reversed in part, finding genuine issues of material fact existed as to whether the hospital breached an independent, corporate duty of care owed directly to its patients, as well as to whether an agency relationship existed between Dr. Abbo and Flower Hospital. The court affirmed the grant of summary judgment in favor of Dr. Crayne.
Whether, and under what circumstances, a hospital may be liable for the negligence of the physicians to which it has granted staff privileges.
Whether a hospital may be held vicariously liable for its employees’ alleged failure to keep an attending physician fully informed of a patient’s condition.
A hospital’s granting of staff privileges to an independent private physician, which the hospital may later revoke under its review procedures, does not establish the requisite level of authority or control over such physician to justify imposing liability against the hospital under the doctrine of respondeat superior.
A hospital has a duty to grant privileges only to competent physicians, but is not an insurer of the skills of private physicians. To recover for a breach of this duty, a plaintiff injured by the negligence of a staff physician must demonstrate that but for the lack of care in the selection or the retention of the physician, the physician would not have been granted staff privileges, and the plaintiff would not have been injured.
Hospitals do not have a nondelegable duty to assure the absence of negligence in the medical care provided by private independent physicians granted staff privileges by the hospital.
In order to recover from the hospital for a breach of its employees’ duty to keep an attending physician fully informed of a patient’s condition, a plaintiff must demonstrate that such breach was the proximate cause of the patient’s injury.
First, the court sets forth the basic principles of agency law and respondeat superior. A principal will be liable for the actions of his agent when the agent is acting in the scope of employment. Generally, employers are not vicariously liable for the actions of independent contractors. Here, Dr. Abbo was acting as an independent contractor when working with staff privileges for Flower Hospital. Dr. Abbo had a private practice, private staff, and bill patients directly, all of which Flower Hospital had no control. Although hospitals can establish policy and procedure related to patient care, the physicians provide services independently, within the scope of their privileges. For these reasons, the mere granting of staff privileges, even if they can later be revoked, do not make hospitals liable under respondeat superior.
Next, the Court determined if Flower Hospital could be liable for injuries resulting from its own negligence in selecting or retaining an independent contractor. It is well-established that an employer must exercise reasonable care in the selection of a competent and careful independent contractor. Restatement of the Law 2d, Torts at 376 (1965). In the hospital setting this translates to the duty to only grant and continue staff privileges for competent physicians. The court decides to adopt the rule articulated above by using a case from Wisconsin. Johnson v. Misericordia Comm. Hosp., 301 N.W.2d 156, 164 (1981). Thus, under this standard, the plaintiff would have to show that but for the hospital’s lack of care in selection, the physician would not have been granted staff privileges. Further, after selection, until a hospital has reason to know that malpractice will most likely occur if the physician continues to have staff privilege, the hospital will not be liable. Thus, the duty set out is to basically remove known incompetence. It is also not the duty to micromanage or try and control treatment once privileges are given.
Under the standards adopted above, Plaintiff presented no evidence demonstrating that but for Flower Hospital’s lack of care in reviewing Dr. Abbo’s qualifications, it would not have given Dr. Abbo staff privileges. Testimony of Dr. Abbo’s repeated tardiness was not enough to raise a material issue of competence.
The Court next determined if the nondelegable duty exception applied in this case. A nondelegable duty can be imposed by statute, contract, franchise, charter, or the common law. W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on The Law of Torts, § 71 at 511–12 (5th ed. 1984). The court considers a case from Alaska that held a nondelegable duty on a hospital emergency room, but this case involved physicans under contract with the hospital, acting under state regulations, and specific hospital guidelines. The Court looks at instances at which it applied nondelegable duties. Employers are held liable under the traditional nondelegable duty exception because the nature of the work contracted involves the need for some specific precaution, such as a railing around an excavation in a sidewalk, or the work involved is inherently dangerous, such as blasting. See Restatement of the Law 2d, Torts, at 395 and 415. The Court says that the practice of medicine by an independent physician does not involve these type of risk and is not willing to extend nondelegable duties to hospitals. After giving privileges, the duty to act reasonably rests on the physicians.
The court says that a nurse’s responsibility includes, “a duty to keep the attending physician informed of a patient’s condition so as to permit the physician to make a proper diagnosis of and devise a plan of treatment for the patient.” However, even if a nurse breached this duty, it must be proven that the failure to disclose the information was the proximate cause of the injury.
Here, Dr. Abbo claims to not have been told about the bleeding of the Plaintiff, but if she had known, she would have arrived at 5:30 p.m., when she originally promised. However, Plaintiff’s expert witness testified that the irreversible damage to the child occurred between 4:00 and 5:00 p.m. Dr. Abbo further testified that even when she arrived at 8:00 p.m., she did not think a C-section was necessary. Based on this evidence, the Court determines that a nurse not relaying proper information to Dr. Abbo, was not the proximate cause of the harm.
Dennis P. Sawan
Licensed in Ohio and Georgia
Christopher A. Sawan
Licensed in Ohio and Michigan