Negligent Credentialing as A Cause of Action

Fred Pastore was negligently treated by two doctors at a Rhode Island Hospital. He died, and his mother, as administrator of his estate, brought a malpractice action against the doctors, and a corporate malpractice action against the hospital for negligently credentialing one of the doctors.

In trying to prove the case, the plaintiff requested documents that dealt with the hospital’s peer-review process. Attorneys for the hospital refused on the grounds that 750 pages contained privileged information.

On appeal, the Supreme Court of Rhode Island reversed in part and remanded the matter with instructions for the trial court to review the documents in camera so that confidential patient information could be redacted, and to determine which, if any documents fell within the attorney-client privilege. Pastore v. Samson, 900 A.2d 1067 (R.I., 2006).

The court held that only one item was protected by the peer-review privilege – a report summarizing the key items discussed at a peer review board meeting.

Among the documents released was a hospital board’s meeting concerning the physician’s bedside manner.

In turning that document over to the plaintiff, Chief Justice Frank J. William wrote for the court, "The ... distinction between a doctor’s bedside manner and the actual medical care that a doctor administers strikes us a sensible. The peer-review privilege was designed to alleviate an increase in medical malpractice lawsuits for substandard health care, not to reduce the number of rude or uncompassionate health-care professionals – although the latter is certainly a commendable objective. [citation omitted] Withholding the content of hospital meetings related to a doctor’s bedside manner does not seem to effectuate the goals of the peer-review privilege." Id. At 1079-80.

Taking into account the number of medical malpractice incidents and medically related errors – the most recent figures indicate that some 98,000 avoidable errors occur at hospitals each year – attorneys for patients are looking beyond negligence to try to find out the reasons for such carelessness.

Hospitals certainly play a role in allowing physicians to practice at their institutions. Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965). Doctors should no longer be allowed to hide their incompetence behind a hospital’s credentialing process. The hospital’s hiring and retention practices should be open to examination by the patient.

Negligent credentialing is a count filed against a hospital based on corporate negligence principles. A corporate negligence claim against a hospital differs from a respondeat superior claim in that it imposes on the hospital a non-delegable duty owed directly to the patient that is independent of the doctor-hospital relationship.

Therefore, a hospital or other health-care provider may be held liable for corporate negligence for failing to exercise reasonable care in hiring an employee or in extending staff privileges to a doctor.

The Rhode Island Supreme Court in Pastore found that under a claim asserting corporate negligence the plaintiff is entitled to discovery of patient complaints, "even when those complaints lead to peer-review proceedings and ultimately to any possible limitations or restrictions placed on a doctor’s privileges." Id., at 1082.

Illinois recognizes negligent credentialing of a hospital as a cause of action separate from any negligence that occurs in the treatment of a patient. Hendricks v. Victory Memorial Hospital, 324 Ill.App.3d 564, 755 N.E.2d 1013 (2d Dist.2001).

Although principles of privilege and work product come into play regarding the discussions of peer review committees, the social benefit in obtaining those records certainly outweighs any detriment, particularly when the health and well-being of patients are at stake.

The Pastore court held that an action for corporate negligence does not necessarily invoke the peer-review privilege because information on a physician’s privileges – and complaints based on them – are not formulated by the peer-review board, but are derived from other non-privileged sources.

Significantly, the court found that patient complaints that trigger the peer-review process are not protected by the privilege because they do not originate within the peer-review committee.

The Illinois Supreme Court in Darling held that hospital regulations adopted by the Illinois Department of Public Health under the Hospital Licensing Act, accreditation standards of the American Hospital Association, and the defendant hospital’s bylaws were relevant, although not conclusive, in establishing the standard of care which the hospital owed its patient.

The court reasoned that this type of evidence performed much the same function as testimonial evidence of custom and practice in the medical community.

"This evidence aided the jury in deciding what was feasible and what the defendant knew or should have known." Darling , supra, 33 Ill.2d 332.

Patients who are victims of negligence at hospitals should consider filing a negligent credentialing count against the hospital and courts should seriously consider opening the peer-review files so that the care of the patient can be fully understood.

In the end, it will not only work to serve patients better, but it can act as a check in improving the hospital’s policies and procedures in protecting patients. After all, that ultimately is the duty of a hospital.