Synergy - July/August 2014 - 11

INDUSTRY FEATURE

institution. The hospital owes a duty of care
directly to its patients.
Darling is significant in at least two respects:
it bypasses the independent contractor
limitation placed upon the hospital's vicarious
liability and, more importantly, it recognizes
that a hospital's responsibility invades the area
of medical care provided by the physician.3
In Gonzales v. Nork and Mercy Hospital,
Judge Goldberg sums up this entire area of
corporate responsibility for the medical staff:
"[The Sisters], like every hospital governing
board, are corporately responsible for the
conduct of their medical staff."4
But the court in Moore v. Board of Trustees
of Carson Tahoe Hospital5 had one of the
most succinct discussions at the time of the
transcendent role of the hospital and how
far the hospital had come from its workshop
days: "The staff must be organized with
a proper structure to carry out the role
delegated to it by the governing body. All
powers of the medical staff flow from the
board of trustees, and the staff must be held
accountable for its control of quality."6
Other states followed suit:
* Washington: "[H]ospital has independent
duty to ensure that patient is not injured
through hospital's failure to supervise
medical staff members."7
* Georgia: "[W]hen medical staff acted as
hospital's agent delegated to screen new
physicians, hospital was responsible for
negligence in their selection."8
* Ohio: "It is the board, not the court,
which is charged with the responsibility of
providing a staff of competent physicians."9
* Oklahoma: "[I]n recent years other
jurisdictions deciding the question have
virtually unanimously adopted some form
of this theory . . . based on an
independent duty of the institution itself
owed directly to patients."10
* Arizona: "[If] the Department was negligent
in not taking any action against [the
surgeon] or recommending to the board
of trustees that action be taken, then the
hospital would also be negligent."11
Therefore, it would appear that the doctrine
of corporate negligence is almost universally
accepted in all states. Ohio took the issue
one step further, recognizing the tort of

negligent credentialing. Some have said
that bad facts influence courts to use their
ingenuity to reach certain conclusions. In
the case of Browning v. Burt,12 in order
to circumvent the one-year statute of
limitations for medical claims, the Ohio
Supreme Court distinguished between
"hospital negligence arising out of the 'care'
of a patient," defined as "the prevention or
alleviation of a physical or mental defect or
illness," and "negligent credentialing of a
physician by a hospital," the latter not being
"'medical diagnosis, care, or treatment'
within the meaning of [the statute of

staff physician must demonstrate that
but for the lack of care in the selection
or the retention of the physician, the
physician would not have been granted
staff privileges, and the plaintiff would
not have been injured. . . ."
The general duty imposed upon
hospitals to grant and continue
staff privileges only to competent
physicians was identified in Albain as
an "independent" duty of care owed
directly to those admitted to the
hospital. One of the areas in which

Active monitoring means ongoing, not
periodic, monitoring.
limitations for medical claims]."13 The court
went on to declare that "an action against
a hospital for bodily injury arising out of
the negligent credentialing of a physician is
subject to the two-year limitations period
. . . ."14 Further, the court said, the statute
protecting peer review proceedings "does
not provide a hospital with immunity from
liability for the hospital's negligence in
granting and/or continuing the staff privileges
of an incompetent physician."15
The facts of this case were egregious.
The plaintiffs were victims of the "love
surgery" performed by Dr. James Burt at
St. Elizabeth Medical Center in Dayton,
OH. In her complaint, plaintiff Browning
alleged that "Drs. Burt and Blue [another
physician defendant] negligently, willfully
and wantonly performed unnecessary and
experimental 'vaginal reconstruction surgery'
upon her without her consent, restructuring
her genital organs to an unnatural and
bizarre anatomical configuration."16 The
court was quite specific in its comments:
The theory of hospital liability at issue
in these cases was discussed at some
length in Albain.17 In Albain, paragraph
two of the syllabus, this court held that:
"In regard to staff privileges, a hospital
has a direct duty to grant and to
continue such privileges only to
competent physicians. . . . In order to
recover for a breach of this duty, a
plaintiff injured by the negligence of a

the hospital owes the independent
and direct duty to a patient is
in establishing (and adhering to)
reasonable peer review procedures:
" . . . [O]nce a competent and
careful physician has been granted
staff privileges, the hospital will
not thereafter be liable unless it
had reason to know that the act of
malpractice would most likely take
place. That is, where a previously
competent physician with staff
privileges develops a pattern of
incompetence, which the hospital
should become aware of through its
peer review process, the hospital must
stand ready to answer for its retention
of such physician."
In addition, the majority in Albain
quoted with approval the following
statement:
"' . . . [A hospital] is not required to
pass upon the efficacy of treatment; it
may not decide for a doctor whether
an operation is necessary, or, if one be
necessary, the nature thereof; but it
owes to every patient whom it admits
the duty of saving him from an illegal
operation [or] false, fraudulent, or
fictitious medical treatment.'"
The complaints against SEMC
[St. Elizabeth Medical Center] in the
cases before us allege that the hospital
Continued on page 12

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Synergy - July/August 2014

Table of Contents for the Digital Edition of Synergy - July/August 2014
