REARDON LAW OFFICE

        As hospitals and their staff find themselves the increasing target of lawsuits, they are often unaware of the ever changing liabilities that the legal system places upon them. One would assume that a common sense approach to many of these issues would absolve a hospital and their staff from liability. However, some of the recent changes of late will come as a surprise to the people involved in the health care field.

         In the case of SOMOZA v. ST. VINCENT'S HOSPITAL OF NEW YORK, the plaintiff was admitted to the St. Vincent's hospital in the 29th week of pregnancy complaining of sever abdominal pain. She was admitted by remained under the care of her private attending physician. During the course of her stay the plaintiff was examined by a resident physician, who, according to the notations she made on the plaintiff's chart, formed an independent opinion that the plaintiff might be suffering from either left pyelonephritis, premature labor, or polyhydramnios. The resident physician recorded a written plan and orders requiring that the plaintiff be hooked up to a fetal monitor and undergo a number of diagnostic tests.

         The plaintiff then underwent a sonogram that revealed that the she was suffering from polyhydramnios which created a risk of premature delivery. the results of the sonogram were so abnormal as to compel the radiologist to recommend a follow up sonogram. However, no such follow up was ever ordered. Instead, after the plaintiff had had two days of bedrest, during which time the resident physician noted on the plaintiff's chart that the etiology of plaintiff's pain remained unclear and that the plan of treatment was continued hydration, observation and analgesia. The plaintiff's private physician conducted two internal exams of the plaintiff during her stay which revealed her cervix had become very high and short. Despite the abnormal sonogram and the findings from the various exams the plaintiff's private physician decided to release the plaintiff from the hospital because her pain had subsided.  

         The private physician conveyed this order to the resident physician who did not formulate an opinion as to the correctness of the decision to discharge since "it was not my place to say one way or the other." On her early morning rounds the resident physician signed an order discharging the plaintiff from the hospital. She did so even though she knew of the abnormal findings from the sonogram as well as the findings from the private physician's exams as well as her own. Four days later, the plaintiff was admitted to the hospital suffering severe pain and soon thereafter delivered twins, who were diagnosed as suffering from cerebral palsy resulting from their premature birth.

         Plaintiffs' lawsuit alleges that the premature birth and subsequent cerebral palsy were the result of the hospital's, resident physician's and the private physician's failure to properly recognize, diagnose, and treat polyhydramnios, failure to properly and timely intervene, failure to heed the plaintiff's signs, symptoms, history and complaints, failure to obtain a proper informed consent and failure to obtain medical experts' consultations.

         The defendants St. Vincent's Hospital and the resident physician moved for summary judgment dismissing the complaint against them on the grounds that neither the hospital nor the resident provided any independent treatment to the plaintiff.

    The defendants base their argument on Hicks v. Fraser Clinics, which stated "...in the absence of an employment relationship, a hospital cannot be held legally responsible for the actions of a private physician attending his private patient so long as the hospital staff properly carries out the physician's orders." Based on this principle, the defendants argue they are not liable to the plaintiff as the discharge was ordered by her attending physician and the resident was merely following orders.

         The defendants motion for summary judgment was denied as the court looked to the plaintiff's expert, who stated that based on his review of the medical records, he was able to conclude that the plaintiff's abdominal pain, polyhydramnios, and the breech presentation of one of the twins placed the plaintiff at a high risk for premature birth. Further, the high and short cervix of the plaintiff coupled with the sonogram and examinations of the resident led the expert to conclude that "...the failure of the hospital staff to discharge without another physical exam in my opinion, ...is a departure from good and accepted practice." The court agreed in this case and stated that the resident clearly had an obligation to examine a private patient in view of the knowledge she possessed in this case and she should not have discharged the plaintiff pursuant to some attending's order.

         In view of this case all hospitals and their staff should be aware that when they carry out the orders of a private physician they can still be held liable where the staff knows, or should have known, "that the doctor's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders." Fiorentino v. Wenger.


    Changes in Hospital Liability

    by Attorney Frank E. Reardon

    November 1993

    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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