Not Our Employee, Not Our Problem

Some Hospitals Deny Responsibility for Medical Malpractice in Their Own Emergency Departments

Most people who visit a hospital emergency department believe that the physicians, nurses and physician assistants who treat them are employees of the hospital.  However, that’s often not the case.  And worse yet, if a doctor or nurse in the emergency department makes a serious mistake and harms a patient, the hospital may try to deny responsibility for the acts of their hospital staff.

Like any other employer, hospitals need to recruit experienced people to staff their emergency departments.  When hospitals need help finding qualified physicians, they often turn to companies whose sole purpose is recruiting physicians and advanced practitioners to staff hospital emergency departments.  These staffing agencies specialize in connecting hospitals with “locum tenens“ physicians. A locum tenens physician is a physician who usually works for different hospitals for sporadic periods, such as blocks of one or two weeks every month or every other month.  It’s not unusual for a locum tenens physician to live temporarily in multiple towns while they work in different hospitals from month to month, and meanwhile call a far-off city their home.

Locum tenens physicians don’t tell patients or their families they’re not employed by the hospital.  Naturally, patients expect emergency department physicians and staff to be employees of the hospital.  People who are harmed by medical negligence expect hospitals to take responsibility for the doctors they bring within their walls to care for patients. 

There’s nothing wrong with doctors who choose to do locum tenens work.  In fact, these doctors are often filling a gap in availability of qualified doctors in rural areas.  Nevertheless, in the event that a locum tenens physician makes a serious error which costs a patient their life, hospitals don’t hesitate to defend the case by claiming the physician was not an employee of the hospital.  Hospitals and the attorneys hired by their insurance companies will argue they have no responsibility to compensate the spouse or family for the negligence of a physician who was simply placed at their hospital from a staffing company.  Instead, hospitals will point the finger at the locum tenens staffing company.  

Fortunately, a statute that establishes certain rules for medical malpractice claims in Pennsylvania known as MCARE Act, makes a hospital responsible for the acts of a health care provider like a locum tenens physician if:

“(1) a reasonably prudent person in the patient’s position would be justified in the belief that the care in question was being rendered by the hospital or its agents”; or,

 (2) the care in question was advertised or otherwise represented to the patient as care being rendered by the hospital or its agents.

40 Pa. Stat. Sec. 1303.516(a)(1)- (a)(2)

Pennsylvania law recognizes patients who present for treatment to an emergency department are justified to believe their doctors and nurses are providing care on behalf of the hospital.  See Capan v. Divine Providence Hospital, 430 A.2d 647, 649-50 (1980).  Still, when hospital attorneys point their fingers at locum tenens staffing companies, an attorney presenting a medical malpractice trial in Pennsylvania cannot forget to introduce the important, albeit obvious evidence of the patient’s beliefs about who was providing care to them in an emergency department.

 

 

Hospitals should be accountable for the doctors, nurses or physician assistants who treat their patients.  Hospitals will not hold locum tenens physicians accountable to safe medicine if they can escape accountability when these same physicians provide substandard medical care.

 

If you or a loved one were injured as the result of medical care arising in an emergency department, it is critical you have attorneys you can trust identify all responsible parties, including a locum tenens staffing company. It will also be important for your attorneys to understand whether a locum tenens staffing company controlled the work of the individual physician or advanced practitioner. Too often, the involvement of locum tenens staffing companies is overlooked, and an important source of money to pay for the full and fair extent of harm caused by the medical negligence.

 

All articles in this blog are the collaborative effort of Lupetin & Unatin, LLC.

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