By Jennifer A. Rymarski, Partner, and Michael Angotti, Law Clerk
A recent article in a legal journal called our attention to an infrequently used, but perhaps growing, direct cause of action against corporate health care providers: negligent credentialing. The article, Corporate Liability for Hospitals, by Erika L. Amarante, discussed general developments and the various ways corporate health care providers might be held liable, culminating with negligent credentialing. We have taken the article as an opportunity to examine the status of this possible cause of action in the Commonwealth of Massachusetts.
Negligent credentialing is recognized in more than 30 states, but has not yet been definitively accepted in Massachusetts. All indications are that the Massachusetts courts are merely waiting for the right case to come along to conclusively accept it. Negligent credentialing is a form of direct liability for hospitals, operating along the same lines as the generally accepted cause of action of negligent hiring or negligent retention. The basic idea is that the law imposes a duty on corporate health care providers and their staff to properly screen physicians who are given permission to see patients within the provider’s walls, regardless of whether or not they are ever actually employed by the corporate provider. Thus, granting privileges to practice in the hospital can be a negligent act if there was cause for concern with the abilities of the physician, which can impose liability on the provider in the event the physician harms a patient. Where negligent credentialing is recognized, there are generally three elements:
- the hospital fails to meet the standard of reasonable care in granting privileges;
- the physician then breaches the standard of care in treating a patient; and,
- the granting of staff privileges to the negligent physician was a proximate cause of the plaintiff’s injuries.
Based on these elements, if the physician was not negligent, the hospital was not negligent. A finding that the physician was negligent, however, does not automatically mean that the hospital was negligent in its credentialing. A physician could have an exemplary record, and nevertheless fall below the standard of care in an isolated incident. In such a case, the corporate health care provider could not have been negligent in its granting of privileges without something in the physician’s record to call their competency into question.
In Massachusetts, negligent credentialing was first addressed in Copithorne v. Framingham Union Hospital, 401 Mass. 860 (1988). The defendant doctor in that case was not an employee of the defendant hospital, but had been affiliated with them and seeing patients there for about 17 years as a visiting staff physician. The case reached the Appeals Court on review of a grant of summary judgment for the hospital. The plaintiff, a female employee of the hospital, sought out the physician’s care because of his reputation as a neurosurgeon, specializing in back injuries. In the course of treating the plaintiff, the physician made a house call wherein he drugged and raped the plaintiff. The plaintiff asserted that throughout the physician’s time as a visiting staff physician at the hospital there were at least three incidents of improper sexual conduct with patients ranging in severity from inappropriate touching to rape allegations (some that the hospital was affirmatively aware of, and some that the hospital reasonably should have been aware of). In response to these intermittent allegations of inappropriate behavior, the hospital gave the physician a verbal warning and told the nurses on staff to keep an eye on him, but continually renewed his hospital privileges. In overturning the grant of summary judgment the court concluded that the jury could have reasonably found that the plaintiff relied on the physician’s good standing with the hospital in choosing to enter into a doctor-patient relationship with him, and that the hospital had violated its duty of care in failing to take sufficient action in response to previous allegations of wrongdoing. The court’s decision thus impliedly recognized the cause of action, but was unable to take a more concrete stance given the posture of the appeal. The case was remanded to the Superior Court.
Negligent credentialing was next addressed by the Massachusetts Appeals Court in Kinney v. Barton, 62 Mass.App.Ct. 1108 (2004). In a case which seemed primed to confront the issue head on, the wrong doctor was sued. The plaintiff alleged that the defendant physician had a duty to supervise and limit the privileges of the doctor that ultimately negligently performed a laparoscopy on her, resulting in injury. The court refused to decide whether the institutional granting of staff privileges created a duty on those individuals who participated in the process of credentialing, because the physician played no role whatsoever in the granting of privileges to the doctor that performed surgery on the plaintiff. The physician was the chairman of the Division of Gynecology, but nothing in the record before the court indicated that the physician had any authority to control the surgeon’s privileges. To the contrary, the hospital bylaws specifically delineated that the Chairmen of the Department of Surgery would be responsible for reviewing surgeon’s performance and rendering an opinions as to reappointment, the Medical Executive Committee was tasked with reviewing these recommendations, and the Credentialing Committee was to make the decision. Because the physician played no role in this process, the court had no reason to definitively accept or reject the theory of negligent credentialing.
Most recently, in Rabelo v. Nasif, 30 Mass.L.Rptr. 547 (2012), the Superior Court of Worcester County was able to address the cause of action, but again only in a limited capacity. The plaintiff brought multiple malpractice claims against an individual doctor and two corporate health care providers. The defendant hospital brought a motion to bifurcate the negligent credentialing claim and to stay all discovery on that count until the underlying claim against the individual doctor had been adjudicated. The court denied the defendant’s motion on the dual grounds of a general reluctance towards bifurcation for the purposes of judicial economy and a lack of prejudice to the movant should discovery continue. While the court was not able to make any definitive decisions regarding negligent credentialing due to its limited role in ruling on the motion, it did cite the Copithorne case and affirmatively state that a hospital does owe a duty to exercise reasonable care in granting privileges, and that a cause of action for negligent credentialing “appears cognizable under Massachusetts law.”
To summarize, Massachusetts courts are ready to recognize the viability of a negligent credentialing claim when confronted with the right set of facts. The limited case law in Massachusetts on this subject may be an indication that hospitals already have sound credentialing procedures in place; however, given the trend in other states and the inclination of the Massachusetts courts to expand direct corporate liability in this regard, corporate health care providers should review their credentialing procedures as if this cause of action has been definitively recognized. Thorough, specific procedures should be in place to evaluate the credentials and competency of physicians seeking privileges. These procedures must be explicitly followed and should be scrutinized even more thoroughly, as it seems inevitable that there will soon be another avenue to hold hospitals directly liable.
