Medical services are increasingly provided in complex arrangements involving corporate entities. Health care may be rendered by any combination of independent contractors, agents, and employees. Where there is a claim that injury has resulted from the act or omission of a single individual, there may be ramifications for other parties whose liability derives from the acts of that person. It is advisable for all counsel to consider the avenues of potential liability especially when the individual provider may have limited personal limits of coverage.
During discovery, it may be determined that claims for negligent hiring, retention, supervision, and credentialing extend liability to entities which were not initially identified as parties. Understanding the parameters of such liability under New York law could be of importance to all counsel representing litigants in malpractice cases.
The concept of vicarious liability is easily explained to a jury if an admitted employee of the defendant has departed from applicable standards in “doing his master’s work, no matter how irregularly, or with what disregard of instructions.” Riviello v. Waldron, 47 N.Y.2d 297 (1979). It is generally only when the employee is acting with purely personal motives well beyond her employer’s business that the employer will not be liable for the negligent acts of an employee. Judith M. v. Sisters of Charity Hospital, 93 N.Y.2d 932 (1999). Where the employee has acted within the scope of his employment, the issue of negligent hiring does not arise because the employee’s act of negligence is directly attributed to the employer. Weinberg v. Guttman Breast and Diagnostic Inst., 254 A.D.2d 213 (1st Dept. 1998).
Hospital liability has traditionally extended to the duty to select qualified employees to assist in patient care through participation in medical procedures. Bryant v. Presbyterian Hospital, 304 N.Y. 538 (1953). Hospitals have the duty to act through their employees to safeguard patients even “from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety.” Morris v. Lenox Hill Hospital, 232 A.D.2d 184 (1st Dept. 1996).
As stated by the Court of Appeals in N.X. v. Cabrini Medical Center, 97 N.Y.2d 247 (2002), a readily perceivable risk of harm to a patient can be sufficient to trigger the duty to protect. It is important to note that a claim for breach of that duty is a general negligence claim, which is subject to a three-year statute of limitations. Bleiler v. Bodnar, 65 N.Y.2d 65 (1985). Over time, this general duty of the institution has been further refined to include specific duties in the credentialing of medical professionals on the one hand and duties related to hiring and retention of personnel on the other. Claims for the breach of these duties are similar but with important distinctions.
Merely because the patient has had an unfortunate outcome, even if the caregiver was negligent, a separate claim does not always lie against her employer. This is particularly evident in the case decisions on negligent credentialing. Public Health Law §2805-j specifically requires every hospital to maintain a coordinated program to identify and prevent medical malpractice. According to §6527 of the Education Law, as well as PHL §2805-m, the activities of the hospital in collecting the information used in discharging that duty, as well as the products of that investigation, are confidential and expressly exempt from disclosure under CPLR Article 31. Logue v. Velez, 92 N.Y.2d 13 (1998).
The Court of Appeals in Logue ruled that the application for surgical privileges as well as any applications for renewal of privileges fell squarely within the confidentiality of the provisions cited above. Once the hospital established that the credentialing process mandated by statute was in place and the information gathered by the hospital was in furtherance of that process, all access to the records of that activity by opposing counsel was foreclosed.
The Appellate Division, in Sledziewski v. Cioffi, 137 A.D.2d 186 (3d Dept. 1988), relying upon the affidavit of the hospital’s director of quality assurance granted the defendant summary judgment based upon the assurance that the hospital had established standard procedures for the credentialing of physicians and had determined that the defendant surgeon was qualified to hold the privileges he had applied for.
In Ortiz v. Jaber, 44 A.D.2d 632 (2d Dept. 2007), despite a verdict in favor of the plaintiff against a hospital which had extended and renewed privileges to a surgeon with a total of 21 malpractice cases (who had settled with the plaintiff prior to trial), the Appellate Division sustained a dismissal of the complaint. The court found that where there was no evidence that the hospital had violated its by-laws or the Public Health Law, there was no valid line of reasoning which could support the finding of the jury and the trial court had correctly set the verdict aside and awarded judgment to the hospital as a matter of law.
Even where there was independent evidence that the hospital had violated its own by-laws in renewing the credentials of a surgeon whose negligence was claimed to have injured a patient, the Appellate Division in Megrelishvili v. Our Lady of Mercy Medical Center, 291 A.D.2d 18 (1st Dept. 2002) upheld the protection of the confidential records of the credentialing process and sustained the lower court’s granting of a protective order shielding the records from discovery. Although the court found a question of fact which required a trial on the issue of whether the hospital was negligent in renewing the surgeon’s privileges, it recognized the information sought to be quality assurance materials which were entitled to maintain their confidentiality.
When the plaintiff sought to prove that a proceduralist was entirely unfit to practice medicine in Stalker v. Abraham, 69 A.D.3d 1172 (3d Dept. 2010), the Appellate Division upheld the granting of a protective order for credentialing materials, stating that the legislative policy of confidentiality to encourage peer review outweighs the need for a party to prove a cause of action.
The uniform approach of the courts at all levels justifies the expectation that credentialing materials will be generated in the privileged context which the legislature has provided, and there will be a paucity of other evidence to support a negligent credentialing claim. How does this relate to the potential of a claim for negligent hiring and retention? That claim could be made against any employer, even those who have no credentialing process. Among the many reported decisions in this area are some which involve suppliers of medical care.
Again the three-year statute of limitations would apply because negligent hiring is negligence rather than malpractice. Bleiler, 65 N.Y.2d at 73, citing Gautieri v. New Rochelle Hospital, 5 N.Y.2d 952 (1959). Also, even where the employee has a record of causing preventable injuries to others in the course of his employment, there is no liability on the part of his employer for negligent hiring and retention when the employee was acting within the scope of his employment. Karoon v. NYCTA, 241 A.D.2d 323 (1st Dept. 1997).
The negligent hiring and retention claim is the available option for negligence by employees whose positions are not subject to credentialing procedures, and the hiring process for those employees is not subject to the protection of the confidentiality applied to their physician counterparts. Sandra M. v. St. Luke’s Roosevelt Hospital Center, 33 A.D.3d 875 2d Dept. 2006). As evident from the Sandra M. decision, the courts draw a distinction between a hospital’s responsibility as an employer (with an increased ability to foresee the wrongful act of an employee) and its general duty as a patient caretaker (with a reduced ability to foresee wrongful acts of non-employees).
Liability for the wrongful act of an employee, even one which is not in the furtherance of the employer’s interests, may be imposed where the employer has hired or retained an employee with knowledge of the propensity of the worker for the type of behavior which resulted in the injury. Kirkman v. Astoria General Hospital, 204 A.D.2d 401 (1994). This is a point to consider in the case where a sexual assault is claimed against a person working in a medical facility, and vicarious liability does not exist. The question becomes whether there was a duty to know of that person’s propensity and act to protect the victim. Mataxas v. North Shore University Hospital, 211 A.D.2d 762 (2d Dept. 1995).
Courts finding employers liable for negligent hiring have done so only in very specific circumstances. Maristany v. Patient Support Services, 264 A.D.2d 302 (1st Dept. 1999). In Maristany, the Appellate Division held that an employer is not obligated to anticipate misconduct on the part of its employees or independent contractors unless it knew or should have known that it was exposing others to the consequences of that misconduct. It is likely to be the case that in the medical malpractice world, liability for negligent hiring or negligent credentialing will continue to be circumscribed.
This article is also on Law.com: Negligent Hiring and Credentialing in Medical Malpractice Defense