Some Limits On Liability Local Attorney Successfully Argues That Hospital, Corporate Parent Not Liable in Case

Dennis Anti, a partner with the firm Morrison Mahoney LLC, and member of its Springfield-based Health Care Practice Group, successfully argued that neither the hospital or its parent can be sued over the actions of a private practitioner who performed an operation at the hospital.

In his decision, handed down in June, State Superior Court Judge John T. Lu agreed — saying, in essence, that the doctrine of informed consent would not be extended to include a hospital or corporate parent, and that physicians not directly employed by a hospital would be treated as independent contractors.

In other words, the court declined to extend the scope of corporate liability by holding that a hospital and its parent could not be held liable for the alleged malpractice of a doctor merely because the operation causing the patient’s injury was performed within the hospitals walls, he said.

And this is good news for all hospital administrators.

“Causes of action evolve all the time, and plaintiffs’ attorneys are always looking for a new cause of action to expand the potential liability, in this particular case, of hospitals and physicians,” Anti explained. “In this case, the court refused to expand the scope of potential liability to the hospitals to include something called corporate liability.

“The big distinction that the judge made in this case,” he continued, “was that he was not going to expand the scope of liability from a non-employed physician of a hospital to the hospital itself.”

Anti told The Healthcare News that Ward v. Kylander marked the first time that a patient filing suit against a physician not directly employed by a hospital or health care system attempted to extend liability to those latter two parties. Thus, this was a case of first impression, and one closely watched by all health care providers in the Commonwealth.

Summing up the case, Anti said Ward brought suit against Kylander, St. Vincent, and Tent, claiming that he had not been properly informed of the risks involved with a stapendectomy, and would not have opted for the procedure had he been so informed. Thus, the case came down to both whether informed consent was given, and which parties were liable if it had not.

Ward’s lawyers tried unsuccessfully to argue that the theory of corporate negligence that imposes liability on a hospital or health system for the actions of all physicians operating within the hospital’s walls, regardless of whether said physicians are actual employees of the hospital, should be applied in Massachusetts.

That theory is applied in several states, including Pennsylvania — the state cited by the plaintiff’s lawyers during their arguments — but Lu said it has no place in the Bay State, and granted the defendant’s motion for summary judgment.

“Ward fails to bring to the court’s attention any authorities suggesting such a theory has been recognized in Massachusetts,” Lu wrote in his 11-page decision.

Ward also fails to provide any evidence suggesting a material issue of fact as to how Tenet or the hospital failed to their duty to adopt and enforce adequate rules and policies.

“If Ward is suggesting that such duty was breached by Tenet and the hospital in not obtaining informed consent, he is asking the court to ignore the general rule that it is the responsibility of the physician, and not the hospital, to obtain informed consent, absent control over the physician by the hospital.”

What does it all mean?

For the foreseeable future at least, it means that the physicians who are merely affiliated with a hospital and not actual employees (and the vast majority of doctors at most hospitals fall in this category) are to be considered what amount to independent contractors, said Anti.

Indeed, the court found no employment relationship between the doctor, hospital, and parent corporation in Ward v. Kylander, foreclosing the applicability of a doctrine called “respondeat superior,” Anti continued.

The Court granted summary judgment to St. Vincent and Tenet Health Systems on all counts of the complaint, by applying settled law of the Common-wealth, that a physician is presumed to be an independent contractor and not an employee of the hospital in which he works (Dias v. Brigham Medical, 438 Mass. 317, 321-322, 2002).

While a doctor can be considered an employee if it is proven that the hospital had the right to direct and control the treatment of patients by that physician, said Anti, the failure of the patient to meet that burden here prevented a finding of vicarious liability as a matter of law.

“The court’s decision in this case clarifies the settled law of this Common-wealth,” Anti noted. “A physician is assumed to be an independent practitioner in the absence of clear evidence that the hospital controls the physician’s activity. In absence of such an employment relationship, it is the doctor’s responsibility and duty to obtain informed consent. A hospital and upstream corporate parent cannot be held liable for the actions of a physician not employed by those entities, even if the wrongful conduct occurs within the hospital.”

By refusing to allow recovery on a theory of pure corporate negligence, Massachusetts has adopted the minority position on this issue. Of the 11 states that have dealt with the issue of whether to allow or disallow a tort for corporate negligence, nine states have adopted some degree of pure corporate liability.

Alabama, California, Illinois, North Carolina, Oklahoma, Texas, Washington, and Wisconsin have adopted the tort of corporate negligence, said Anti. In Ward v. Kylander Massachusetts joined Maine and Ohio in refusing to adopt this theory as an avenue of recovery. In Massachusetts, Maine, and Ohio, the only avenue to corporate liability is to meet the elements of respondeat superior or otherwise demonstrate that the corporation was vicariously liable for the acts of its servant.