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  • Taking Chances2:24

Can a hospital in Massachusetts be held liable for providing information regarding incidents of professional misconduct involving a member of its medical staff to otherhospitals in which that physician has privileges, or in which that physician is seeking privileges?  The answer to this question lies somewhere in the murky boundaries between a hospital's duty to patients to supervise the medical treatment administered by its medical staff, state and federal reporting requirements and common law tort law.


Hospitals in Massachusetts are required by state law to establish peer review procedures for investigating, reviewing and reporting conduct by its medical staff that indicates incompetency in that physician's specialty or conduct that might be inconsistent with or harmful to good patient care or safety.  Massachusetts hospitals are also required to report the Board of Registration in Medicine disciplinary actions taken against physicians.  Like the legislatures of most states, however, the Massachusetts legislature has not enacted legislation which would require a hospital to report directly to another hospital information concerning incidents relating to a physician's competence or conduct. 


On the federal level, a relatively new reporting statute will require hospitals to report to a national reporting bank, when established by the Secretary of Health and Human Services, professional review actions which adversely affect the clinical privileges of a physician for more than thirty days, or the acceptance of the surrender of a physician's clinical privileges at that hospital.  The federal statute does not go so far as to require hospitals to report information concerning physician incompetence or misconduct directly to other hospitals, either. 


Although such direct reporting to other hospitals is not required by any state or federal statute, might a hospital be held to a common law duty to so report such incidents, such that the failure to do so might result in liability to patients at those hospitals who later suffer damages as a result of that physician's incompetence or misconduct?  The short answer to this question is "no."  However, developments in the common law of other states towards imposing such a duty in analogous situations may someday provide the basis for imposing this duty on hospitals in Massachusetts, as well as other states. 


In general, American common law tort law does not impose an affirmative duty on persons to prevent harm to third parties.  Exceptions to the rule involve situations where a person enjoys a special relationship with the person who causes the harm to the third party.  One such special relationship in which a person may be held liable under common law for failing to prevent harm to third parties is that of employer and employee, where the employee commits harm as a result of dangerous conduct within the scope of the employment relationship.  In some cases, courts have imposed liability on an employer for actions committed by an employee which were committed outside of the scope of the employment relationship but which were committed on the employer's property.  Analogizing those situations to the relationship between a hospital and a member of its medical staff, it seems safe to say at this point that a Massachusetts hospital is under no common law duty to report to other hospitals incidents of professional incompetence or misconduct of a physician employee, or a physician to whom the hospital has granted privileges unless the care and treatment rendered at those other hospitals is provided in the scope of the employment relationship between that physician and the initial hospital. 


Another factor to consider in this context is the possible hospital liability to the physician in question for defamation and slander.  In Massachusetts, employers are generally protected by the qualified privilege to disclose defamatory information concerning an employee when the publication is reasonably necessary to serve the employer's legitimate interest in the fitness of an employee to perform his or her job.  However, the employer may lose that privilege where the employee can prove that the publication was unnecessary, unreasonable or excessive, or that the employer recklessly published the report to outsiders.  No Massachusetts court has addressed the issue of whether a hospital would be liable for libel or slander to a physician for reporting to another hospital false information concerning incidents of that physician's incompetence or misconduct. 


Furthermore, a physician might sue a hospital under the theories of intentional or negligent interference with existing advantageous contractual relations, where a hospital receiving the information later terminates the privileges of that physician; or, if the hospital receiving the information later denies the physician's application for privileges, the plaintiff might sue the initial hospital for intentional or negligent interference with prospective advantageous contractual relations.  Regardless of whether the plaintiff would ultimately be successful under those theories, the hospital would have to spend money presenting a legal defense to the claims.


An expansion in hospital liability would surely lead to an increase in the cost of medical malpractice insurance and, consequently, a rise in overall health care costs.  The possibility that courts may someday expand a hospital's duty to report incidents of professional incompetence or misconduct of a member of its medical staff should cause some concern for hospitals as they reexamine their peer review procedures and attempt to keep down the costs of providing medical care to patients.  Finally, in deciding whether to notify other hospitals of incidents of a physician's incompetence or misconduct, a hospital would be wise to be aware of the potential liability to the physician under theories of libel and slander, and interference with existing or prospective advantageous contractual relations.

Professional Hospital Liability for Reporting Professional Misconduct to Other Hospitals

by Attorney Frank E. Reardon   June 1991

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