Malpractice Consult

By Lee J. Johnson, JD

A department head's liability for a colleague's mishap

Answers to your questions

Q: I'm chairman of the department of medicine at my community hospital. Although the position is largely an honorary one, rotated among the more senior physicians every couple of years, I'm concerned about my liability in a recent situation.

A patient presented to the emergency department with labor pains and ruptured membranes. Her family physician was contacted. Since it was a breech presentation, he referred the patient to an ob/gyn, who performed a cesarean section. The baby developed cerebral palsy.

We later learned that the patient was diabetic, and the FP hadn't managed her prenatal care properly. Indeed, he shouldn't have been involved in the case at all; his privileges for handling high-risk pregnancies had previously been curtailed, in a document signed by me. But the hospital had failed to inform the FP of the restriction.

Now I've been subpoenaed to give a deposition. To what extent am I liable in this case?

A: You and the hospital share liability. The hospital is obliged to credential physicians pursuant to JCAHO certification, state laws and regulations, and its own bylaws. If it fails to do this, it risks losing its accreditation and state license, and being sued for malpractice or corporate negligence. The procedures for notifying the doctor, the operating room, or the labor and delivery suite are probably spelled out quite clearly. In this case, the rules obviously weren't followed.

Your own liability stems from the fact that you didn't have a personal conversation with the FP and didn't send him follow-up documentation. Since this doctor is in your department, personal follow-up is both feasible and advisable as well as good politics. The documentation is necessary for your protection.

As chief of a department, one of your duties is to assure that no unqualified physician practices on your staff. So it's clear that you are also a potential defendant in the case. The fact that you see your title as largely honorary won't help much in court.

The plaintiff's lawyer may be taking your deposition to evaluate whether to bring you into the case, which he can do anytime during the statute of limitations period. In most states, the lawyers for the other potential codefendants, such as the hospital or ob/gyn, can do the same. Notify your insurance carrier immediately. Ask for legal counsel, and explain that you may later be named in the lawsuit. This situation would usually be covered under your professional liability policy, but carriers have some discretion.

When you're testifying at the deposition, stick to the facts. If you're asked why you earlier restricted the FP's privileges, candidly explain your medical judgment at the time. Familiarize yourself with the hospital's notification protocols beforehand, and prepare carefully with your assigned counsel. There seems to be no way to explain away the hospital's failure to notify the FP of the restriction. Any effort to "spin" the facts in the hospital's favor or conceal the restriction on the FP's privileges is likely to backfire and alienate a jury.

You and your hospital deserve credit for reviewing the FP's privileges and making the tough decision to limit them. Many department heads are loath to create animosity with colleagues, or they hesitate to act because they fear a defamation claim. But you should have followed through.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2001;22:84.