CORPORATE LIABILITY When it comes to malpractice, facility liability starts and stops with your policies and procedures.

When you think of malpractice, you likely think of a patient suing you for the actions of your physicians or staff, but patients can also directly sue your hospital or surgical center under a doctrine called corporate negligence. One of the seminal cases on this topic is a Pennsylvania Supreme Court case, Thompson v. Nason Hospital (osmag.net/V4JBpk). Before this case, courts typically found hospitals immune from malpractice suits. But in this case, the court laid out 4 distinct duties that a healthcare facility owes its patients. Generally speaking, if a plaintiff can prove that the hospital breached any of these duties, the hospital can be held directly liable to the plaintiff in addition to also potentially being held vicariously liable for the actions of its doctors, nurses or other staff.

Maintain a safe and adequate facility
The first duty highlighted in the Thompson case requires hospitals to "use reasonable care in the maintenance of safe and adequate facilities and equipment." This may seem like an obvious responsibility, but when you consider the expansive infrastructure of many larger institutions, it can become overwhelming. Consider this: An elderly, fall-risk patient is in a room equipped with bed alarms and other measures to ensure he doesn't ambulate without assistance from staff. But the patient decides he's feeling up for a walk down the hallway. As he leaves the bed, the alarm malfunctions and doesn't notify staff that he has stood up. During his journey, he loses his balance, falls and breaks his hip.

Blame can, and will, be distributed amongst the staff that needed to have line-of-sight vision of him and those who needed to check on him regularly. But the facility may also be on the hook, because even though the bed alarm malfunctioned, the facility still owes an implicit duty to its patients to maintain its equipment. If it's discovered that you didn't exhibit reasonable care to maintain the bed alarms (for example, you slacked on regular maintenance checks), then the court may find you directly liable in the form of corporate negligence.

Select and retain competent physicians
The second duty, to "select and retain only competent physicians," requires that you have a robust hiring and credentialing process for physicians. The potential scenarios are endless, but could include anything from a physician omitting previous mistakes in his history, to a facility failing to perform a thorough background check. Attorneys will almost always invoke or explore this duty while looking for a source of "what went wrong," so make sure you have and strictly enforce a thorough hiring and credentialing policy.

Oversee the medicine practiced within your walls
You also have a duty to oversee all persons practicing medicine within your walls, but what does this mean in reality? In a plain sense, staff have a duty to recognize and report abnormalities in the treatment and condition of patients, and this duty then flows to the facility and its administration.

Consider the case of an at-term, morbidly obese pregnant woman demonstrating textbook symptoms of pregnancy-induced hypertension. This patient presents to, and is discharged from, the hospital with these symptoms by a resident on 2 separate occasions, before arriving for a scheduled induction a week after the symptoms began. Before being admitted, the woman is placed in a waiting area for more than 14 hours. During this time, her symptoms continue to progress and she develops preeclampsia. The woman dies due to complications after an emergency Cesarean section.

In the wake of her death, the hospital tries to disentangle itself from a finding of corporate negligence by arguing that it had no notice of the woman's situation. The court, however, upholds the finding of corporate negligence, saying that the situation was so blatant that even if the hospital didn't know, it still should be held responsible because it should have known, either from reporting through the nursing chain of command or through appropriate supervision.

Courts have held that if there is a failure to report changes in a patient's condition, or to question a physician's orders that are not in accordance to standard medical practice, the facility itself will be liable for corporate negligence. Have a chain of command for passing along important patient information, and ensure that staff is trained in how to communicate using this chain.

Enforce adequate rules and policies
When it comes to malpractice, facility liability starts and ends with policies and procedures. Constantly review and revise them. When you update a policy, don't just change it in your manuals and new-hire handouts — work with staff to put your policies into practice on a daily basis.

An example of where this basis for liability against a hospital was called into question involved a man who developed a staph infection, allegedly due to the length of time the hospital let his heparin lock remain in place. The court addressing the suit found that the plaintiff's question of whether the hospital's policy of letting heparin locks remain in place for 72 hours was appropriate in the face of evidence that an appropriate time limit was instead 48 hours. The corporate liability claim questioned the sufficiency of the hospital policy itself, not the staff or physician's actions.

Are you at risk?
While courts have expressly said that patients can sue hospitals if they break one of these 4 duties, it can vary from state to state for ambulatory surgery centers. However, a few recent cases seem to suggest that the doctrine will extend to most corporate entities providing health care. OSM

CORPORATE NEGLIGENCE
Your Facility's 4 Distinct Duties

Under a doctrine called corporate negligence, patients can sue your hospital or surgical center directly if your facility breaches any of these 4 duties:

1. A duty to use reasonable care in the maintenance of safe and adequate facilities and equipment.
2. A duty to select and retain only competent physicians.
3. A duty to oversee all persons who practice medicine within its walls to patient care.
4. A duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.