'Negligent credentialing'

February 1, 2008

Dr. Skin has a Sunbelt-based practice with a heavy emphasis on skin cancer. He has seen thousands of melanomas, some life- threatening, over his 20-year career.

Key Points

Dr. Skin has a Sunbelt-based practice with a heavy emphasis on skin cancer. He has seen thousands of melanomas, some life- threatening, over his 20-year career.

Unfortunately, Dr. Skin has also been sued three times for missing the diagnosis of melanoma. Two of these patients died. All three cases led to causes of action in medical malpractice based on negligence.

In all three cases, juries found for the suing plaintiff, and Dr. Skin, the defendant, was found negligent.

As is required by law, the three incidents were reported to the National Practitioners Data Bank (NPDB), a repository of information not available to the public, in Dr. Skin's jurisdiction. All hospitals and managed care organizations have access to such information.

Three years ago, many years after these unfortunate trials, Dr. Skin sought staff privileges at a newly opened hospital in his area. This hospital, an offshoot of a very prestigious, internationally known institution, gave staff privileges to all the physicians in the nearby town, including Dr. Skin. Minimal background checks were undertaken in regard to these local, well-known, respected doctors.

Two years ago, Dr. Skin saw a hospital-admitted patient who was noted by his cardiologist to have a pigmented lesion. Dr. Skin, unfortunately, did not make the diagnosis of melanoma. Ultimately, the patient sued Dr. Skin for this misdiagnosis. In addition, the plaintiff sued the hospital for negligent credentialing.

The basis of this new lawsuit was that the local hospital had never sought information from the NPDB regarding Dr. Skin's previous lawsuits. The lawsuit alleged that had the hospital sought such information about Dr. Skin, he would never have received his desired privileges.

The hospital, aware of the bad press associated with the negligent credentialing lawsuit, has sought to remove Dr. Skin's hospital privileges.

Dr. Skin has never heard of "negligent credentialing." What is this?

Historically, hospitals have been held vicariously liable for physician malpractice only when the physician was directly employed by the hospital. Because most physicians are not employees of the hospitals that have granted them privileges, most suing plaintiffs have been unable to hold hospitals liable for negligence.

As a result, successful claims would need to be based on another doctrine. In Darling v. Charleston Community Memorial Hospital, the court recognized that the modern-day hospital does much more than merely provide facilities for treatment. It assumes certain responsibilities for the care of the patient.

Recognition of a hospital's direct duty to its patients, under a "corporate" negligence doctrine, has grown out of this increasingly technical and medically complex hospital environment and the public's concurrent expectation of quality care and treatment.

Since Darling, courts have consistently acknowledged this reality. Furthermore, some courts have viewed hospitals as "the logical starting place for addressing problems of professional incompetence."

Consequently, the hospital, more than state licensing boards, professional organizations and other review organizations, is viewed as having "a superior position to supervise and monitor physician performance." Because of this unique position, a hospital's duty to its patients now includes the duty to select and maintain a medical staff, both employed and independent, that is competent to treat its patients.

This direct, independent duty to patients does not, however, turn hospitals into insurers of physician skills, nor does it mean that, in all cases of negligence, a hospital is liable. Rather, the imposed duty is limited to "the exercise of due care in the granting of staff privileges, and the continuation of such privileges, to independent private physicians."