Presentation on theme: "Hospital Liability Health Care Torts. Hospital Organization Board of Directors Hospital employees Medical - nursing, etc. Administrative Independent Contractors."— Presentation transcript:
Worker's compensation Usually a comprehensive remedy Even covers intentional torts by other employees and third parties Some states have exceptions for deaths caused by gross negligence Limited remedy but certain Long term medical and disability can be expensive Subject to lots of gaming
Third party actions Injury by other contractors Depends on whether the worker's compensation coverage is wrapped around the contractors WC against the employer, but regular tort against the contractor Employer is probably entitled to subrogation Same with injuries by third parties, including patients Might be a fireman's rule issue for dangerous patients Mullins v. State Farm Fire and Cas. Co., 697 So.2d 750 (La.App. 1 Cir. 6/27/97)
Federal Civil Rights Laws Race/Sex/Religion/Ethnicity Discrimination ADA Rehabilitation Act Other federal laws that provide a direct action against the employer 42 USC 1983 for state employees
Liability for Injury to Contractors If the worker's compensation coverage does not wrap around, then no bar against regular tort claims What if a surgeon slips on a spill in the hall?
Liability for Injury to Visitors Dangerous patients Communicable diseases Over zealous treatment? What would be the standard of care? Does a visitor have to get an expert witness to prove medical standards? Does it look more like a regular premises liability case?
Injuries by employees Is it within the course and scope of employment? Respondeat Superior "let the master answer" Is it outside the course and scope of employment? Did the employer fail to properly screen the employee - negligent hiring? Was the employer on notice of the risk - negligent retention?
Old Defenses Charitable immunity Overruled - Garlington v. Kingsley, 289 So.2d 88 (La. Jan 14, 1974) (NO. 53675) Avoiding the immunity Borrowed servant and Captain of the Ship Let plaintiff sue the surgeon for the hospital employee's actions Still good when there is control of the employee, otherwise overruled - Johnston v. Southwest Louisiana Ass'n, 693 So.2d 1195, 96-1457 (La.App. 3 Cir. 1997)
Medical Staff (Not Hospital-Based Physicians) How do you get a physician? Physicians admit patients, hospitals do not admit patients If it is the physician's negligence, the hospital is not liable The hospital is only liable for its own negligence Negligent medical staff credentialing Negligent retention of medical staff
Shared Liability Nursing and other specialty staff have an independent duty to the patient Recognize incorrect dosages or medications Recognize when a patient needs attention and the physician is not available Recognize when the physician is screwing up The sponge count cases
Hospital Based Physicians Radiologists, pathologists, etc. Independent contractors, but not selected by the patient Emergency Department Sometimes staffed by medical staff, sometimes by independent staffing companies
Theories of Liability for Hospital-Based Physicians and Emergency Rooms Pure independent contractor Hospital is no liable, unless independently negligent Control analysis Does the hospital exercise enough control to for that physician is effectively an employee? (we will read a case) Ostensible Agency What does it look like to the patient?