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.