Subject Matter: Direct Hospital Liability
Good evening and warm wishes for a wonderful holiday season. I’m
following up on the update sent on 10-20-10 and included below in Barkes
v. River Park Hospital where the TN Supremes held that a hospital be
liable to its patients for breach of its duty of care absent any
liability of other health care providers. Today the Supreme Court denied
the hospital’s application to reconsider the opinion.
In its petition for rehearing, River Park advances two primary
arguments. First, River Park asserted that this Court’s opinion failed
to address the issue of whether the jury’s verdict was inconsistent and
irreconcilable. Second, River Park argued that the Court’s opinion
failed to address the situation where a hospital could be found liable
when none of the
individual health care providers were found to have committed medical malpractice.
The Supreme Court stated that these two arguments essentially address
the same point – can a hospital be liable to its patients for
breach of its duty of care absent any liability of other health care
providers? The question was answered in the affirmative based on prior
well-settled precedent in Tennessee. The Court restated that held a
hospital has a duty to its patients to exercise that degree of care,
skill,and diligence used by hospitals generally in its community. The
Court relied on prior Tennessee decisions that permitted direct
negligence actions against a hospital for failing to exercise reasonable
care in discharging duties owed directly to patients.
Because of this direct duty of care, a hospital may be directly liable
to a patient independent of any vicarious liability of its employees.
Thus, a hospital can be negligent for failing to enforce its policies
procedures in patient care absent a finding that other health care
providers were also negligent. It necessarily followed, according to the
Court, that a verdict finding River Park liable for breaching
its duty of care to Mr. Barkes by, among other things, failing to
enforce its policy that all patients seen in the emergency room will be
seen by an appropriate physician is not inconsistent and irreconcilable
with a verdict finding that other health care providers who treated Mr.
Barkes did not deviate from the standard of care they owed to Mr.
The jury verdict was supported by proof from which it could be
reasonably concluded that the negligence and the resulting injury to Mr.
resulted from an institutional failure that was, in essence, managerial
and administrative in nature. The hospital developed rules and policies
designed to ensure that its patients receive quality care, as is
required in order to obtain and maintain accreditation by the Joint
Commission on Accreditation of Healthcare Organizations and to comply
with the standard of care applicable to its patients. A hospital’s
responsibility to administer and oversee the activities of its emergency
department includes a duty to create and maintain effective lines
of communication to health care providers practicing within its walls in
order to ensure that they are aware of and following the hospital’s
policies and procedures. The administration of the hospital is also
responsible for implementing an effective system of oversight to
enforce its policies.
The Supreme Court’s recognition of a theory of direct liability does not
result in the imposition of strict liability against hospitals for
injuries suffered by its patients, nor will it make hospitals a
guarantor of patients’ health irrespective of individual negligence or
force hospitals to regulate the medical decisions of doctors practicing
in the hospital. Well-established principles of negligence are
applicable to actions alleging a theory of direct liability. We can
expect to see the Barkes opinion relied upon by PA’s to support claims
against management companies that are responsible for the implementation
of policies and facility oversight as well as facilities based upon
direct liability claims.
This opinion highlights the high level of importance placed on
implementation and compliance with facility policies. We often are faced
in lawsuits with the P&Ps being used on examination of nursing
staff and administration and invariably a policy has not been enforced.
Even without negligence on the part of the staff, if the failure to
enforce the policy
Can be established to have caused harm, it is possible the facility
could be directly liable. Evaluating and updating and in-servicing on
P&Ps is the best practice.
Have a good night and continued joy through the season. Rebecca
Firm/Company: Adelman Law Firm
Document Date: January 1, 1970
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