The number of negligent credentialing claims filed in conjunction with traditional medical malpractice claims has increased significantly. Lawyers for plaintiff patients view healthcare organizations as having “deep pockets,” particularly now that some physicians carry less malpractice insurance than in the past.
Careful adherence to a healthcare organization’s credentialing policy is absolutely critical for decreasing the risk of related liability claims. To illustrate this point, this article explores a case of negligence against a neurosurgeon that involved posterior cervical spine surgery with instrumentation and a claim of negligent credentialing against the defendant hospital. The multimillion-dollar verdict is indicative of the jury’s belief that a hospital is responsible for monitoring the qualifications and surgical activities of the doctors who practice in that facility.
The Case
The plaintiff, a 44-year-old male, experienced dizziness upon his return from
a cruise. He was subsequently diagnosed with C3–C4 stenosis and C1–C2
instability. The defendant neurosurgeon performed an anterior and posterior
cervical spine surgery with instrumentation. During the course of the anterior
surgery, the neurosurgeon was unable to place the plates and screws. He placed
the plaintiff into a halo and performed the posterior surgery three days later.
The posterior surgery involved two Luque rods, each 5.5 mm in diameter, which were placed along the plaintiff’s cervical spine and wrapped with sublaminar wires. The evoked potentials (monitoring the plaintiff’s spinal cord) were lost when the wires were being passed around the lamina.
The plaintiff suffered tremors for approximately one year following the surgery and it was subsequently discovered that the rods had migrated from the cervical spine through the foramen magnum and into the brain. The plaintiff underwent surgery to have the rods removed. Although he initially showed signs of improvement, his condition soon deteriorated and he required a second surgery to decompress the spine and remove an additional sublaminar wire which remained. The plaintiff did not show significant signs of improvement after the second surgery and ultimately underwent a third surgery to fuse the C1 vertebra to his skull in an attempt to provide cervical stability.
The plaintiff was diagnosed with a permanent cerebellar and spinal cord injury as a result of the movement of the Luque rods. He is confined to a wheelchair, suffers from chronic pain requiring morphine and neurotin, and experiences significant difficulties processing information. He is totally disabled from employment.
The plaintiff sued the neurosurgeon and the hospital. The neurosurgeon filed for bankruptcy, resulting in a stay of the case against him. The plaintiff alleged that the hospital improperly credentialed the neurosurgeon for posterior cervical spine surgery when the neurosurgeon was not qualified to perform that particular surgery. The plaintiff also claimed that the neurosurgeon had failed to meet the standard of care during the course of the posterior surgery.
The plaintiff’s expert testified at trial that he had neither seen nor heard of the rod construct utilized by the neurosurgeon. The plaintiff also introduced the package insert from the titanium rods which stated “not for use in cervical spine.” Notably, the neurosurgeon conceded at trial that it was the first time he had attempted the surgery.
The hospital argued at trial that the plaintiff’s claims for malpractice were against the neurosurgeon and that it bore no responsibility for the neurosurgeon’s actions. The hospital maintained that the neurosurgeon was properly credentialed and came forward with evidence showing that the neurosurgeon was board certified, had been practicing for more than 10 years prior to the surgery in question, and had attended all required continuing medical education units. Concerning the instrumentation used in the surgery, the hospital argued that such decisions were within the sole discretion of the neurosurgeon.
The jury found that the neurosurgeon was negligent and that the hospital failed to properly credential the neurosurgeon. The plaintiff was awarded in excess of $11 million in damages.
Defense Perspective
The disturbing ease with which plaintiffs’ attorneys are able to simply
add negligent credentialing claims to traditional malpractice claims can be
explained, at least in part, by a growing number of state court decisions that
have expanded the meaning of negligent credentialing. These decisions have
found that a claim for negligent credentialing is a claim against a healthcare
provider for a departure from the accepted standard of care and, consequently,
is to be treated as a healthcare liability claim. The courts in these decisions
have concluded that a hospital’s duty to credential physicians is interwoven
with delivering quality medical care, and that any acts or omissions by a hospital
in credentialing a physician are an inseparable part of the treatment provided
to a patient.
In order to prevail under a corporate negligence claim based on a breach of the credentialing duty, a plaintiff must prove that:
■ the hospital credentialed the physician and, therefore, owed the patient a duty to exercise reasonable care in the selection and supervision of the physician;
■ the hospital failed to exercise reasonable care because it knew, or should have known, that the physician was incompetent or otherwise unfit; and
■ the hospital’s negligence in the selection and supervision of the physician was a proximate cause of the injuries suffered by the patient.
In order to successfully defend a negligent credentialing claim, it is essential that a hospital or other healthcare entity provide evidence demonstrating that:
1. the hospital required completion of its medical staff application and verified the accuracy of the applicant’s statements;
2. the hospital solicited information from the applicant’s peers, including peers not referenced in the application, who have knowledge concerning the applicant’s education, training, experience, competence and ethical character;
3. the hospital determined whether the applicant is currently licensed to practice in the state and whether the license has even been suspended or otherwise challenged; and
4. the hospital inquired whether the applicant has ever been involved in any adverse malpractice action or has experienced a loss of membership or privileges at any other hospital or other provider.
In the credentialing process, information from other sources such as the National Practitioner Databank, the AMA Physician Masterfile and the Federation of State Medical Boards’ Physician Disciplinary Databank also should be considered.
As this case demonstrates, many juries are willing to hold a healthcare organization liable under a negligent credentialing theory in the event of a bad surgical result. The slightest hint of something “off” in the credentialing process can open the door to significant exposure. Thus, it is absolutely essential for a healthcare organization to comply with its credentialing policy and that it document its efforts in complying with the policy.
Lastly, healthcare organizations need to pay close attention to whether or not documents and other materials generated during the course of the credentialing process are privileged. Traditionally, documents relating to peer review and credentialing have been privileged in order to promote frank and open review of surgical cases. However, a number of recent state court decisions have eroded the extent of the privilege applicable to materials generated during the peer-review and credentialing process.
Michael A. Chabraja, JD, is a partner with McGuireWoods LLP in Chicago, Ill. Monica C. Wehby, MD, is a neurosurgeon with Microneurosurgical Consultants P.C. in Portland, Ore.