It was with a sigh of relief for many of us that the 2011 Legislative Session came to an end just a few weeks ago. (Some battles –like a certain HB 477– continued on longer, of course). Here at the Utah Association for Justice, we feel as though we had some victories but also encountered some surprisingly tough challenges, namely SB150 – Negligent Credentialing. Some of us may have assumed that every Utahn would want as much protection as possible against the chance of receiving medical care from a pedophile, sex offender or drug addict. We guess we were wrong…this disturbing notion doesn’t actually seem to bother the majority (that is, our many legislators who voted in favor of the bill). (For more information about SB 150, scroll below.)
The Utah Association for Justice is an organization with a double mission. While first and foremost we are a membership-based organization for plaintiffs’ attorneys, we also strive to protect Utah families from injustice. Our members may appear on billboards and TV ads, but they are also the people that fight tirelessly for the rights of “the little people” and hold the 7th Amendment (the right to trial by jury in civil cases) very close to their hearts, and not just for the sake of their wallets.
In the political sphere, it is easy for us to be labeled as self-serving, just as any interest group might be. But the fact needs to remain that our interests are both for our organization’s members AND for Utah’s citizens. We are not an anti-hospital organization; that would be ridiculous, as we all count on hospitals for our wellness a much as anyone. But we are pro-accountability. Hospitals, like all businesses, need to be accountable for their actions. The welfare of Utah families is not something we take lightly at the UAJ.
With this in mind, we were pleased this past Monday to find a well-rounded article in the Salt Lake Tribune on the topic of SB 150, a final plea for attention. If you haven’t already done so, check out the article here: http://www.sltrib.com/sltrib/home/51510891-76/hospitals-utah-malpractice-bill.html.csp
This morning’s news reported that Governor Herbert signed SB 150, despite this last-minute attention to the issue. However, the bill is still worth mentioning here because these sorts of issues come up again and again, and while it may be “over” for now, the concerns of Utah’s citizens are never at rest. UAJ constantly has a watchful eye on our state’s legislative affairs, and will diligently continue to do so — for our 400 members, and for Utah.
To catch up, here are the basics on SB 150 and reasoning behind UAJ’s dislike for the bill, which was recently passed in the Utah House and Senate and was just signed by Governor Herbert.
SB150 (Adams, J.S./Hughes, G.) – Eliminating Legal Claims for Negligent Credentialing
What is a legal claim for Negligent Credentialing?
It is a claim against a hospital and exists only when that hospital has ample notice that a doctor is predatory, drug addicted or dangerously incompetent but still allows the doctor to practice on the hospital’s patients by granting that doctor privileges at the hospital.
What Does SB150 Do?
It eliminates this legal claim and provides complete immunity to hospitals when they knowingly allow an impaired or dangerous doctor to have privileges or to continue to have unfettered access to the hospitals’ patients. If this bill passes, there would be no recourse to hold a hospital accountable to patients when it had reason to know that the doctor was a sexual predator, a drug addict, or incompetent.
For that reason, we are working on an amendment to the bill to clarify that this claim exists only when the hospital credentialed a known predator, addict, or grossly incompetent doctor.
How Long Has Negligent Credentialing Been Recognized in Utah?
Like every other state in the nation, Utah courts recognized negligent credentialing cases for many years. For instance, in the Charlotte Hatch v. Dr. Thomas Hawkes and Ashley Valley Hospital et. al. 1997, a Vernal court held a hospital responsible for negligent credentialing when it knowingly kept a drug addicted and impaired surgeon on its staff. Last year, the Utah Supreme Court affirmed that a claim for negligently credentialing existed under Utah law. This was only an official pronouncement from the highest court but the decision did not establish the claim.
Is Negligent Credentialing Really a Problem in Utah?
Generally, hospitals do a good job. Sadly, there have been instances where Utah hospitals, for whatever reason, chose to overlook a doctor’s problems in order to keep him/her on staff. When it happens, vulnerable patients are victimized.
Real Example #1: A Utah County hospital recently kept a doctor on its staff who was sexually exploiting patients. This doctor had previously lost his license in another state for the same thing. While this doctor was sued repeatedly for injuring patients and other offenses, the hospital only stopped him from practicing there AFTER the police arrested the doctor in a sting operation while he was trying to sexually exploit another one of his young, female patients. According to state records, this doctor’s sexual exploitation of his patients had been going on for years.
Real Example #2: An orthopedic surgeon who had received a medical discharge from the military (where he had been a surgeon) was granted privileges to operate at a rural hospital in Utah. He had, in addition to physical problems, a serious prescription drug problem, of which the hospital was aware. Because the hospital depended on the substantial revenue his practice brought to the hospital, his privileges to operate at the hospital were granted and renewed. While impaired, he inflicted permanent injury to a patient while performing tibia fracture surgery. After a two week trial, which ended on March 20, 2002, the jury returned a verdict finding the hospital negligent for having credentialed the surgeon and awarded $820,000 against the hospital in favor of the injured patient.
Shouldn’t Hospital Credentialing of Doctors and Peer Review Deliberations be Kept Secret?
By law, these discussions are kept secret; negligent credentialing claims do not change that at all.
Isn’t Granting Doctors Credentials the State’s Responsibility?
No. The state, thru DOPL, licenses health care providers but each hospital decides on its own who will be able to practice within its walls. It should do this based on background, abilities and training. Credentialing is entirely separate from state licensure and discipline. This is a claim against the hospital for a decision it makes on who works there, not against the hospital for a decision DOPL makes.
Wouldn’t a Legal Claim for Negligent Credentialing Expose Individuals on Hospital Credentialing Committees to Liability?
No. Individuals who sit on committees are protected by law. They have never had, and don’t have, any liability for negligent credentialing claims by patients. Only the hospital, as an entity, is responsible for this claim.
Doesn’t the Patient Have Other Claims Against the Hospital for Injuries Suffered During Medical Treatment?
Not for this behavior by a hosptial. Seriously injured patients and the families of dead patients would be left without remedy when a hospital knowingly allows an impaired, incompetent or predatory doctor to continue to harm patients.