It’s the Dawn of a New Day: More Zealous Advocacy of Medical Malpractice Cases Against Hospitals

Mature couple with doctor and medicine
Mature couple with doctor and medicine, holding pill bottle. Woman is holding a bottle of medicine. Both look concerned, worried and upset. Doctor is in foreground.

Professional negligence cases against hospitals and doctors practicing there are fraught; they are minefields designed to destroy a plaintiff’s case against each potential culpable party. At times it feels like we, as plaintiff’s attorneys, are caught in a game of whack-a-mole trying to keep our client’s case alive and ensure that those responsible are parties to the case when it comes time to compensate the victims. Standing in our way are hospitals that structure strict independent contractor relationships with the physicians who staff the hospital as if ghosts perform the healthcare services provided within its walls. Then there are the physician foundations formed around hospital physicians to shield the proper defendants and create yet another layer of insulation. What’s more, since the 1993 Illinois Supreme Court decision in Gilbert v. Sycamore Mun. Hospital established the elements of apparent agency in the medical malpractice context, hospitals have refined detailed patient consent forms principally designed to defeat claims of vicarious liability based on allegations that the physicians are the hospital’s apparent agents. Many such consents have withstood legal challenges to the detriment of plaintiffs. So when can a hospital be held accountable for medical malpractice? How does a plaintiff’s attorney zealously advocate and obtain a comprehensive recovery for his or her injured client? The answer, dig deeper and think harder.

Of course hospitals are liable if employees and staff members like nurses, physician’s assistants or technicians participate in the medical negligence, that’s the easy answer. Generally, though, the focus is on the physician for the most culpable conduct. So when attorneys are having a potential case reviewed by a medical expert, we should not look at the physician and hospital staff conduct in a vacuum; rather we must consider the hospital’s institutional duties, in which the physicians have instrumental roles, for potential areas of negligence. Did the hospital policy and procedures create a system or set in motion an event that was a contributing cause of the medical negligence? Did the hospital undertake measures to protect its patients and prevent incompetent physicians from practicing in the hospital? Institutional negligence should always be on the checklist of potential claims against a hospital when an injured patient or their family seeks the services of a personal injury lawyer.

This brings me to yet another tool in plaintiff’s toolkit against hospitals: “negligent credentialing.” This is a legal mechanism to establish the hospital’s liability in cases where an independent physician’s conduct is the primary basis for a medical malpractice claim. In fact, in 2007 Illinois was one of the first states to uphold a claim of negligent credentialing against a hospital that nabbed an $8 million verdict for the plaintiff in Frigo v. Silver Cross Hosp. and Medical Center.2016 ushered in a new era for negligent credentialing claims against hospitals. In January, the Illinois Supreme Court eased the plaintiff’s burden in such cases by allowing applications submitted in the hospital’s confidential credentialing process to be disclosed in discovery. This decision prevents credentialing applications, even though they are considered confidential, from being privileged when the hospital’s knowledge regarding the physician’s competence is an issue in the case. While every fact pattern may not be amenable to institutional claims against the hospital, these are stones that cannot go unturned in representing our clients and giving them the best chance at full and fair compensation.

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