Court Sense: Skirting Tort Reform

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A claim of “negligent credentialing” may allow plaintiff attorneys to circumvent state medical malpractice damage caps.

In this case, a 34-year-old female with Down syndrome collapsed at home prior to coming to the ED. After a normal CT scan, the patient was diagnosed with a focal seizure, and anti-epileptics were administered. The patient’s parents reportedly disagreed with the EP’s diagnosis and requested that the patient receive tPA for a possible stroke but were told that the patient was not a candidate for tPA. The parents then requested that the patient be transferred to another facility. After arriving at the second facility, the patient was given tPA for what ultimately was determined to be a stroke, but due to the delay in administration, she allegedly suffered “severe irreversible brain damage.”

The plaintiffs sued for medical malpractice. Since Louisiana statutes impose a $500,000 cap on medical malpractice judgments, the plaintiffs made additional allegations against the hospital to try to circumvent the malpractice caps. They argued that the hospital was negligent because it had not implemented an adequate policy for treating strokes and because it had allowed a “bad physician” to be credentialed, which was the issue in the Louisiana Supreme Court opinion. Specifically, the plaintiffs alleged that the hospital should never have credentialed the physician, citing the following issues:

  1. The hospital violated its by-laws by granting the physician privileges to work in the hospital’s ED even though she did not have one year of full-time experience working in emergency medicine (as the bylaws required)
  2. The hospital violated its own bylaws by failing to obtain evidence that the physician had performed necessary CME in emergency medicine training
  3. The hospital failed to investigate two malpractice claims filed against the physician before she sought privileges at the hospital
  4. The hospital failed to follow up on a “qualified” reference given by an emergency medicine physician at the time the physician was granted privileges

Ultimately, the Court was only asked to decide if the negligent credentialing allegation fell under the State’s medical malpractice cap. In forming its opinion, the Court noted that a decision to grant privileges to a physician is an important administrative decision that differs from “purely medical decisions made by physicians during the course of a patient’s treatment, such as deciding whether to recommend surgery, whether to order diagnostic testing, or which medicine to prescribe.” The Court also showed that none of Louisiana’s tort reform laws included “credentialing” within the definition of “malpractice.” Using a six-part test developed in a prior court decision, the Court held that a claim for negligent credentialing was not medical malpractice, but was instead hospital negligence. Therefore, any damages related to credentialing a “bad doctor” would not be limited by Louisiana’s $500,000 malpractice cap.

Legal Lessons

  1. In the cat-and-mouse game of tort reform, plaintiff attorneys are continually trying new tactics to circumvent tort reform protections and to increase the amounts of potential judgments. “Artful pleading” of allegations that are not subject to malpractice caps such as alleging negligence against the hospital (or medical contract groups), alleging statutory violations, or even claiming gross negligence against physicians is becoming more common. An August 2017 AMA article notes that three states are currently facing challenges to tort reform statutes [1].
  2. This case shows a situation where a plaintiff attorney may portray the patient’s family as being smarter than the physician. During the initial ED visit, the family requested tPA because they thought the patient was having a stroke. The physician made a different diagnosis, but ultimately the family’s diagnosis was the correct one. Dealing with such situations is sometimes difficult and may require extra documentation. For example, documenting why the family believes a condition is present may show that the family’s reasoning is anecdotal and has no medical foundation. Noting a family’s belief that a patient was having a stroke because “Uncle Bob was wiggling his fingers like that before he had a stroke” would clearly show that the family’s conclusions came from faulty reasoning. In addition, documenting the reasons that the patient was likely not having a stroke and/or why the patient was ineligible for tPA, then discussing these issues with the family, would also help demonstrate that the decision not to provide tPA at the time was reasonable – even if an uncommon presentation of a stroke was present.
  3. With “creative pleading,” hospitals may be subject to more liability if a physician is “negligently” credentialed. Expect more stringent investigation into CME, medical training, and prior malpractice cases – both during initial credentialing and during re-credentialing. As a result, there will likely be even longer delays in these processes. Don’t forget to keep copies of all your CME credits and keep track of any time spent on medical education.
  4. Physicians who agree to indemnification clauses in their contracts could be held liable for any losses that contract groups and/or hospitals sustain because of negligent credentialing claims. Keep in mind that because courts have held that these types of claims are not malpractice-based, the claims are not limited by malpractice caps (and may not be covered by malpractice insurance), leaving you personally exposed to millions of dollars in potential liability.
  5. The debate about what constitutes reasonable practice for stroke treatment continues.

See Billeaudeau v. Opelousas General Hospital Authority


REFERENCES

  1. wire.ama-assn.org/practice-management/tort-reforms-facing-legal-challenges-three-states

ABOUT THE AUTHOR

SENIOR EDITOR
Dr. Sullivan, an emergency physician and clinical assistant professor at two residency programs in Illinois, is EPM's resident legal expert. As an attorney specializing in healthcare issues, Dr. Sullivan represents physicians and has published many articles on legal aspects of medicine. He is a past president of the Illinois College of Emergency Physicians and a past chair and current member of the American College of Emergency Physicians' Medical Legal Committee.

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