Michael J. Sacopulos, Esq.
On May 4, 2011, the United States District Court in Kansas allowed a plaintiff to insert an administrative negligence claim against a hospital administrator. The claim arises out of alleged permanent injuries to the newborn child of Sandra and Edwin Deya. The Deyas claim that a hospital administrator failed to create, develop, and refine policies and protocols for newborn care at Hiawatha Community Hospital. The Deyas went on to argue that the absence of appropriate policies and protocols contributed to the injuries suffered by their newborn child.
Hiawatha Community Hospital moved to dismiss this claim based on the fact that there was no physician patient relationship between the hospital administrator, Dr. Rosa, and the Deyas’ child. The defense cited the Kansas Supreme Court’s position that absent a physician patient relationship there can be no liability for medical malpractice.
The federal court in Kansas in part agreed with the defendant. The federal court ruled that the claim was not a medical malpractice claim in nature. However, the court went on to rule that pursuant to the Restatement of Torts § 324A, the administrator had undertaken a duty to establish and maintain written policies or procedures for the newborn unit at Hiawatha Community Hospital. The court went on to acknowledge the novelty the Deyas’ claim. “The argument that no state or federal Kansas case has affirmatively recognized a duty on the part of the physician acting purely in an administrative capacity under Restatement (2nd) of Torts § 342A, does not establish that the proposed amendment here is futile.” Further the federal court noted three different courts outside of Kansas have considered that an implied duty on the part of the physician could arise under this section of the Restatement of Torts.
The Kansas ruling is important in several respects. First, it further opens the door to general negligence claims against physicians serving as medical directors and administrators of hospitals and outpatient surgery centers. Secondly, it may raise insurance coverage issues. Physicians serving in the capacity of a medical director or administrator may wish to consult their professional liability policy to see if coverage exists for medical decisions outside the course and scope of the traditional physician patient relationship. The Kansas court, by finding that claims of this nature are not “medical malpractice” claims yet can still go forward under a general negligence theory potentially creates insurance coverage issues for physicians serving in administrative capacity.
This relatively new theory of plaintiffs appears to allow an end run around medical malpractice statutes in certain circumstances. We can be certain that this will not be the last we hear of this theory.
Just another nail in the coffin of good people who would normally go into the health care field, will be seeking a new profession. When all the doctors leave, who will the judges and attorneys seek health care. Very similar to Ayn Rands novel Atlas Shrugged. Maybe one good way to look at this is at least this process will hurry up and end soon so the true form of “capitalistic” health care can come back and people can start seeing a doctor again
The current healthcare system harms hundreds of thousands of people each year. Various scientific sources back this up. Current healthcare administrators have done nothing to change this according to the last 10 years of data. They often fall back on the “known complication of the proceedure defense.” An argument that would seem to be silly if applied to other industries. Maybe they just shrug (like Atlas?) and say: “Hey…planes just crash…nothing we can do about it.”
I am an attorney but I am also a nurse. I currently work as a nurse. People need to understand that systems and not individuals are usually responsible for harm caused by a patient. People cannot be perfect. Redundant systems of checks are proven to work. A growing mountain of research in healthcare quality proves this. Yet hospital administators have not educated themselved in the science of healthcare quality. Equally at fault are physicians and medical acedemia. This group continues to drag their feet. And at the mention of checklists, protocols and other proven methods of reducing medical error they become defensive.
I don’t like lawsuits. However, the best way to decrease risk is to implement a robust patient quality system. Until hosptial power brokers start doing this the tort system, imjperfect as it is, is the only way the public has to ensure quality.